Anti-dumping measures in public procurement: definition of dumping. What is the supplier's good faith and how to confirm it In the event of a tender, information confirming the good faith

The conscientiousness of the procurement participant under 44-FZ is one of the anti-dumping measures in contract system... The participant shows information from the register of contracts on previously fulfilled obligations in order not to increase the collateral. We will figure out how to confirm good faith, and also provide a sample confirmation of good faith for download.

What is good faith under 44-FZ

When the proposal of the winner of the auction or tender is 25% or more cheaper than the NMCK, anti-dumping measures are used. This is done in order to prevent the restriction of competition due to excessive understatement of the cost of products, as well as to protect customers and, as a consequence, end consumers from poor quality procurement results.

If at the same time the initial tender price is less than 15 million rubles. (inclusive), then the supplier has a choice. He can provide the customer with 1.5 times the contract security or the usual security plus documents showing his business reputation in the contract system.

From 01.01.2019 with the initial maximum contract price up to 15 million rubles. the interpretation of Article 37 44-FZ has ceased to be ambiguous. Under the new rules, such measures are applied as follows: this is either securing the performance of a contract in one and a half size, or securing its execution in a “standard” one-time amount, together with information about good faith.

Only "good faith" without money or a bank guarantee as security for the execution of a state contract is now not enough!

From 01.07.2018, amendments to 44-FZ entered into force. In this regard, it is specified that anti-dumping measures will act when conducting:

open competition, competition with limited participation;

And they also apply to new e-procurement:

open competition in electronic form;
limited participation competition in electronic form;
two-stage competition in electronic form.

In this case, the very procedure for providing will be similar electronic auction according to the current legislation. That is, information about good faith will be provided by the winner when sending the signed draft contract to the customer.

How to confirm the good faith of a supplier under 44-FZ

The necessary information is contained in the EIS, namely in the register of contracts that were previously concluded with state customers. Moreover, all transactions must be completely closed, that is, be in the status “Execution completed” or “Execution terminated”.

Information confirming the good faith of the procurement participant 44-FZ may be as follows (optional):

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

It is important to take into account that in the above options, the amount for at least one of the documents should not be less than 20% of the price offered by the participant in the current auction. Moreover, the subject of completed transactions is not specified by the law, that is, it can be anything, the participant is not required to confirm the fact of execution of similar government contracts.

What, in addition to the number of years, is the difference between paragraphs 1 and 3 of Art. 37 44-FZ?

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

If the company is only 1 year old, and it has 3 completed contracts without fines and 2 with fines, can we prove our good faith?

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

What is bona fide information?

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

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

In this case, the price of one of the contracts must be at least 20% of the price at which the procurement participant was asked to conclude a contract.

Who decides on the sufficiency of information confirming the validity of the offered price?

This decision is made by the customer's procurement commission.

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

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

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

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

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

Information that confirms the conscientiousness of the procurement participant includes information contained in the register of contracts placed in a single information system(EIS).

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

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

What documents are required to confirm the good faith of the supplier?

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

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

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

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

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

Auction (part 5 of article 37 44-FZ)
In the event of an auction, information confirming the good faith is provided by the procurement participant when the signed draft contract is sent to the customer. If such a participant, recognized as the winner of the auction, does not fulfill this requirement, or if the procurement commission recognizes the information confirming the good faith as unreliable, the contract with such a participant is not concluded, and he is recognized as evading the conclusion of the contract. In this case, the decision of the procurement commission is drawn up in a protocol, which is posted in the EIS and communicated to all auction participants no later than the working day following the day of signing the specified protocol.

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

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

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

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

If the customer has not established a requirement to enforce the contract, and the participant has set a dumping price, what requirements will be imposed on such a participant?

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

In accordance with Part 1 of Article 96 44-FZ, the customer in the notice of procurement, procurement documentation, draft contract, invitation to participate in the determination of the supplier (contractor, contractor) in a closed manner must establish the requirement to enforce the contract, except for cases that do not apply to competitions and auctions.

Algorithm for the application of anti-dumping measures

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

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 on the market is very strong, and even more on the state order market. Participants in tenders fight to the last. And sometimes they reduce the price to a minimum. At the same time, customers begin to doubt that the product or service they purchase can receive at all.

Therefore, 44-FZ has a requirement for such bidders. If during the auction the price decreases by more than 25% of the NMCK, anti-dumping measures are applied to such participants. Or in simpler terms - the participant must prove his conscientiousness 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 bidders reduce the price by more than 25%, they must prove their good faith. As soon as the tender is over and the customer has determined the winner of the tender, the countdown begins 10 days 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 tenderers 2019-2020

During the webinar, you will learn:
What 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 warranty obligations;
How and why to register with ERUZ;
What has changed in advance payments on government contracts;
What you need to know about customer plans for 2020.

Moreover, if the participant - the winner of the tender does not provide the customer with his good faith, he can be entered into the RNP. Therefore, it is worthwhile to carefully approach this issue, follow the deadlines and prepare a letter to the customer on time and send the security of the contract.

How to prove your good faith

In case of anti-dumping measures, the tenderer must send the contracting security 1.5 times more than it was originally indicated. And also provide documents that will confirm that the participant has previously performed contracts without fines and penalties. Moreover, the contracts must be for the last 3 years. And the total amount of contracts should be 20% more than the NMCK of this tender.

But there is a small indulgence for the participants, in terms of the subject of the contracts. Those contracts that the participant will provide can be for different subjects of contracts. The most important thing is that at the time of filing the application they have already been executed and in the EIS they are in the status “execution completed”.

It will be important that if an advance payment was specified in the draft contract, then the security will be paid not 1.5 times more than the NMCK amount, but will be the advance payment amount. At the same time, the customer itself will not be paid by the customer for anti-dumping. This condition must be spelled out in the draft contract.

How to prove your good faith to save more money in your account

If the tenderer dumps, he is obliged to provide an increase in one and a half times the contract security - 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 make standard security in the amount according to the notice and additionally confirm his good faith.
Read how participants can prove good faith in order to save on collateral and keep more free money in their accounts, and what conditions information from the contract register must meet in order for the customer to accept it.

How is the confirmation of good faith drawn up?

The form of confirmation of good faith is not established by either 44-FZ or by-laws regulations... The tenderer can provide information in the form of a declaration, a letter of guarantee or a simple letter - notification. The main thing is that such a form is signed by the head of the organization with a seal.

All information that the tenderer provides to the customer is publicly available in the EIS. The tenderer simply needs to collect everything on one sheet.

What you need to indicate in your letter of confirmation of good faith

How the participant of the tender will draw up this letter is not important. It is important what data he will indicate in his letter. It is imperative to indicate in the letter of good faith the registry numbers of contracts that have been executed in 3 years. Information about the customers with whom the contracts were concluded (their names and TIN). The prices of each of the contracts, and perhaps it is even better to summarize them and show that the total amount is 20% higher than the NMCK of this tender. You also need 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 register of EIS contracts. If the customer sees a discrepancy in the information, then he recognizes the tenderer as having evaded the conclusion of the contract and will send it to the RNP.

All information is best presented in tabular form. It is not worth sending to the customer copies of the contracts, acts, invoices, and payment orders. 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 ambulance, drugs, 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 used when there is no contract enforcement in the terms of the tender.

When preparing the next purchase, an important part of the work of any state customer is the substantiation of the NMCC. Specialists study the offers on the market and put the average value in the tender notice. Bidders reduce it, competing for the right to conclude a contract. However, if a supplier offers a price less than 75% of the original price, this raises suspicion: can high-quality products be so much cheaper than the market average? In order not to be subject to anti-dumping measures and still sign an agreement, such a supplier must prove its good faith.

For this, it is not enough just to be absent from the RNP list. You must provide:

Standard banking security plus confirmation of the supplier's good faith in the form of an extract from the register of contracts. This is a list on the EIS website, in which customers under 44-FZ enter the data of companies that have fully fulfilled their obligations, which means they are trustworthy.
If there are no completed contracts, it is necessary to transfer the collateral to the customer's account in one and a half times the amount.
If the NMCK transaction is more than 15 million rubles, the collateral must exceed one and a half times the size.
In 2018, if the object of the procurement is GWS necessary for normal life support (fuel, food, medicines), in addition to one of the above points, the participant must provide evidence of the actual availability of such a product at the specified price (for example, a letter of guarantee from the manufacturer).

Requirements for the number of executed contracts

Proof of positive business reputation companies are served by transactions entered by government customers in the register of contracts, in the status “Completed / terminated”. There should be several of them:

more than 3 for Last year or 3 years if all contracts are executed without forfeit;
more than 4 in the last 2 years, if 75% are met without forfeit.

The object of purchase for these transactions is not important, however, very small contracts are not taken into account: at least one of them must be at least 20% of the price proposed by the participant in the tender, for which good faith is required.

When to File Supplier Bondness Documents

In 2018, a letter of integrity must be provided to the customer:

As part of an application for participation in offline procedures in the format of competitions: closed, open, two-stage, with limited participation. If the commission finds incorrect information, then it simply rejects the application.
Together with a signed contract for online contests and auctions. In this case, the discovery of inaccurate information threatens the winner with evasion and getting into the RNP list.

There are no approved forms for such a document. It can be compiled in free form if it contains the information described in the article. So you don't miss anything, use our sample.

Fig. 1 Sample confirmation letter

Information about the good faith of a particular organization can be found on the Synapse website in the Checking counterparties section. On the page of each legal entity, you will find a mark on whether it is listed in the RNP (or was previously listed in it).

It will be necessary to confirm the good faith of the supplier when the customer has objective reasons to doubt the trustworthiness of the counterparty. Good faith is confirmed by providing information about the fact of execution of government contracts for a certain period of time.

Why is confirmation of good faith necessary?

Widespread in a market economy, and in the state order since the existence of the public procurement market, the practice of excessive price reductions has become widespread in order to achieve some other goals, in addition to the obvious profit. This method of competition is collectively called "dumping", and is a negative element of normal competitive relations, since if it is used, other market participants lose the opportunity to make a profit, and the participant who applied dumping most often will not get it, having worked at a loss. But since the criterion of the lowest price has been and remains the criterion of the lowest price in the market of state and municipal purchases, the existence of dumping in this market is a necessary attribute for several reasons.

First, this is due to the imperfection and non-obligatory nature of the methodology for justifying the initial price by government customers. This allows them to set far from market prices when the notice is published. As a rule, customers deliberately inflate the starting prices in order to make the bidding more likely to take place, and the customer has a minimal risk of not spending the budget funds. For the same reason, the initial price and its justification are often deliberately formed under the allocated limits of budgetary obligations. It is quite easy to establish this in most cases, you should only carefully study the rationale for the initial price, where it is very common to use exactly the same prices when using different sources information about them.

Secondly, a decrease in the initial price is, in most cases, the only opportunity to win the bidding, which, in conditions of developed competition in certain markets, leads to inevitable dumping. In the period prior to the entry into force of Federal Law 44, the state did not regulate and did not protect customers from dumping. But during the preparation of draft 44 FZ, the discussion of the mechanism for combating dumping in the implementation of public procurement was the most pressing and acute issue, since by that time dumping had a serious impact on the government order market and carried very significant risks. As a result, Article 37 44 of the Federal Law appeared, which contained a mechanism for determining dumping and methods of protection against it.

It was found that, as a general rule, dumping is a reduction in the initial price by 25 percent or more from the NMCK. Thus, a situation can often arise when the question of even one penny can determine whether there was dumping or not. Considering the widespread overestimation by customers of the initial contract price, it is worth noting that the emergence of protection mechanisms against dumping did not in any way reduce the very phenomenon of dumping, it is still common in the public procurement market. This is partly due to the fact that the mechanisms themselves do not seem intimidating to most participants. Let's consider them in more detail.

Depending on the value of the initial price, there are different options for dumping actions. The demarcation amount is fifteen million rubles. If the NMCK is more than this amount, then in the event of dumping, the winner is obliged to increase the initial amount of the security for the performance of the contract by one and a half times, regardless of the method of security, be it a bank guarantee or the amount Money transferred to the customer's account. The provision of such an increased amount of collateral will confirm the good faith of the supplier.

If the amount of the initial price is less than 15 million rubles, then in the case of dumping, the legislator gave the winner of the auction a choice. He can, as in the first case, increase the size of the contract security by one and a half times, or provide confirmation of the supplier's good faith in an intangible form. To do this, the winning bidder must provide the customer with information about previously concluded and successfully executed state or municipal contracts (hereinafter referred to as the Civil Code). In the case of a tender, this information must be provided as part of an application for a tender, and when holding an auction - when signing the draft Civil Code on the part of the supplier.

Information and documents confirming the conscientiousness of the supplier

Despite the fact that 44 FZ does not disclose and does not define the supplier's conscientiousness, it can be indirectly determined from its rules that this is a characteristic of the supplier, which is based on the experience of the previous execution of the Civil Code. Accordingly, such a contract should be executed relatively recently, prior to the submission of the application for participation in the tender, without violations on the part of the supplier. And here it is worth paying attention to the following.

Confirmation of the supplier's good faith must necessarily be in the Civil Code, therefore, it is not a confirmation of the good faith of ordinary civil contracts concluded not with government customers, but with other business representatives or citizens. Also, information on this Civil Code must be published by the customer in the register of contracts, which is located at the following address: http://zakupki.gov.ru/epz/contract/quicksearch/search.html. At the same time, in accordance with part 1 of article 103 44 of the Federal Law, contracts concluded on the basis of paragraphs 4, 5, 23, 42, 44, 45, 46, 52 of part 1 of article 93 44 of the Federal Law are not subject to inclusion in the register of contracts. Thus, quite common contracts under clauses 4 and 5, which at the household level are called everywhere as "purchases, contracts up to 100 thousand", "small purchases", will not confirm the supplier's good faith. Consequently, the best option to confirm the good faith of the supplier under 44 FZ, the contracts concluded as a result of the auction are used.

Also, the information confirming the good faith of the supplier must meet one of the following conditions:

three or more GCs completed within a year prior to the date of application submission without violations;
4 or more Civil Code, completed within 2 years prior to the date of application, 75% of which are without violations;
three or more CCs executed within three years prior to the date of application submission without violations.

And in all cases, the price of one of the contracts must be at least twenty percent of the winner's proposal.

If you look closely at the above cases, you will clearly see the legislator's flaw in their formation, since case 3 completely absorbs case 1, and case 2 essentially corresponds to case 3. Therefore, I recommend focusing only on case 3.

Supplier bona fide information confirmation form has not been established. But since the winning bidder must provide information from the register of contracts, the most appropriate option is to provide registry numbers, with a brief listing in tabular form of the main conditions that the Civil Code must comply with in order to confirm the supplier's good faith. You should not send scanned copies of contracts to the customer, with the attachment of payment and acceptance documents, all the information the customer needs is contained in the register of contracts.

If the customer from the register of contracts establishes the information inconsistency with the above conditions, then the participant will be recognized as having evaded the conclusion of the Civil Code with further inclusion in the RNP during the auction. When a competition is held, its application will be rejected.

Exceptions

Above, we examined the general rules for anti-dumping measures. But there are some exceptions to them, in particular, if the customer purchases food, emergency medical supplies, medicines, fuel, then the winner, in case of dumping, must justify his proposal by submitting a letter of guarantee from the manufacturer or documents that confirm the possibility execution of the contract at the proposed price.

In the case of purchasing drugs that are included in the list of essential and essential drugs, dumping is a price reduction of twenty-five percent or more relative to the maximum selling price registered in accordance with the law. At the same time, a decrease in relation to the initial price is not taken into account.

And, of course, anti-dumping measures are not applicable if the customer has not established contract enforcement.