You can log in using one of the social media accounts. Anti-dumping measures during procurement are applied when conducting Confirmation of the good faith of the procurement participant

According to the previously effective law on the placement of state orders (law dated July 21, 2005 No. 94-FZ), the main criterion for the selection of suppliers and contractors was the price they offered. Contracts were concluded with merchants in whose applications it was the lowest. In practice, this resulted in low quality of the supplied products, failure to meet the stated deadlines and other troubles for the customer. Antidumping measures under 44-FZ, the law of 04/05/2013, which came into force in January 2014, are designed to prevent such situations, preventing the artificial lowering of prices by auction participants.

Dumping barriers

Dumping is the sale of goods (works, services) at an artificially low price. The state had to tighten up the procedure for holding tenders and auctions, as unscrupulous businessmen and resourceful swindlers quickly learned to deceive him. Offering the most low price, and winning the competition on formal criteria, they often kept it due to the inadequate quality of the product or service. Sometimes the estimates were revised in the process of work, when, having already completed part of it, the contractor began to convince the customer that the initial prices should be increased. Sometimes, having received an advance payment, the fraudulent supplier would disappear along with government money.

Therefore, antidumping measures are applied under 44-FZ justifiably and not by chance. Their main goal is to prevent suppliers and contractors from winning tenders through unfair (artificial) price reductions for the goods and services offered. It is achieved in two ways (Article 37 of Law No. 44-FZ):

if the initial / maximum contract price following the results of the tender (auction) is no more than 15,000,000 rubles, the parties conclude a contract:

either after the supplier / performer / contractor (procurement participant) has provided the security increased by one and a half times - in comparison with the amount specified in the tender documentation, but not less than the amount of the advance, if its payment by the customer is provided;

either after the participant provides information that indicates his good faith;

if the initial / maximum price of the contract exceeds 15,000,000 rubles, before the conclusion of the contract, the participant must provide one and a half security (but not less than the amount of the advance) without fail.

The criteria for the good faith of the participant are determined by paragraph 3 of Art. 37 of the said law. In particular, within a year or within three years prior to the filing of the current application, he must fulfill in good faith at least 3 contracts (without fines and penalties). Or within two years - at least 4 contracts, of which at least 75% were executed flawlessly. The information is verified by a special Register. At the same time, at least one of the previously concluded contracts must be at least 20% of the price of the planned contract.

Application of antidumping measures under 44-FZ

So, anti-dumping measures help to “cut off” from tenders and auctions merchants, for whom the main thing is to conclude a contract, not to execute it. However, they only apply in certain cases.

Additional restraining measures are required if the procurement participant significantly reduces the initial or maximum contract price - by at least 25%. But there are a few exceptions to this rule.

It should be noted that the above restrictions preventing artificial lowering of prices apply only to tenders and auctions, where the customer is state structures... Anti-dumping measures under 44-FZ do not cover the request for quotations and proposals.

A special procedure has been developed for state purchases of drugs vital for the population. Their list is approved by the Government of the Russian Federation. It also sets the maximum permissible price for such medicines. If bidders reduce the price by less than 25% relative to this value, anti-dumping safeguards are not applied to them.

If the suppliers of goods required for the uninterrupted life support of citizens (food, fuel, etc.) reduce the price by more than 25% during a tender, they need to document it. For example, provide letter of guarantee from their manufacturer or a consignment note (clauses 9, 10, Article 37 of Law No. 44-FZ).

Anti-dumping measures under 44-FZ: calculation example

According to paragraph 6 of Art. 96 of Law No. 44-FZ, the security of a contract can vary from 5 to 30 percent of its initial or maximum price.

For example, if the price was 10,000,000 rubles, and the security amount was 2,000,000, then the supplier, having reduced the price by more than 25%, will have to increase the security deposit by one and a half times, and pre-pay 3,000,000 rubles.

But, if under the terms of the contract, the supplier is entitled to an advance in the amount of, for example, 5,000,000 rubles (50% of the contract price), the amount of security will increase to this value, since with an advance that exceeds 30% of the amount of the contract, the amount of security is set exactly in the amount advance payment.

Under dumping in the sphere public procurement means the participant's pricing policy, which provides for an intentional understatement of the proposed contract price by 25% or more. Of course, there are participants who are ready to work without profit or even at a loss in order to "light up" in the procurement market and prove themselves. However, in most cases, a significant price reduction leads to unpleasant consequences for the customer. What dumping can lead to So, deliberate dumping can turn into unpleasant situations for the customer.

The winner's refusal to conclude a contract that is unfavorable for him and, as a result, the need to conduct the auction again.
Unfair execution of the contract, the use of low-quality cheap materials in the performance of work / provision of services and, as a result, the need to terminate the contract unilaterally or in court.

Article 37. Anti-dumping measures during tender and auction

And the winner was the participant who managed to make price offer with a minimum step. What anti-dumping measures are provided for in 44-FZ? With the arrival of 44-FZ, the situation changed in the better side, but, in my opinion, very insignificantly.

So, what anti-dumping measures appeared in 44-FZ? According to Part 1 of Art. 37 44-FZ, if during the tender or auction the NMCK is more than 15 million rubles and the procurement participant with whom the contract is concluded has offered a contract price that is 25% or more lower than the NMCK, the contract is concluded only after such participant provides enforcement contract in an amount exceeding 1.5 times the amount of the security for the execution of the contract specified in the documentation for the tender or auction, but not less than in the amount of the advance (if the contract provides for the payment of the advance). Those. if NMCC is more than 15 mln.

How anti-dumping measures are applied in public procurement

Anti-dumping measures under 223-FZ 1. Anti-dumping measures under 44-FZ The concept of dumping Dumping (from the English dumping - dumping) - 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 outstanding. In addition, dumping contributes to a general drop in the level of work (services provided) and the quality of supplied products.

However, as practice has shown, not only fraudsters or fly-by-night companies 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.

Dumping scheme "Taran" It is rather difficult for young organizations, as well as newly baked individual entrepreneurs without work experience, to participate in public procurement.

Antidumping measures under 44-fz and 223-fz

As a precautionary measure, the winner of the tender will either provide enhanced contract enforcement or proof of good faith. In some cases, he may be required to justify the final cost.

Important

Differences in 44-FZ and 223-FZ Art. 37 44-FZ requires anti-dumping measures to be applied for tenders and auctions if, as a result of their holding, the NMC is reduced by 25% or more. When holding a tender, documents confirming good faith are attached to the application.

The commission of the customer checks them, and, in case of detection of false information, rejects the participant. If dumping occurs during the auction, the winner must confirm good faith with documents by attaching them to the signed contract.

Otherwise, it may end up in the register of unscrupulous suppliers.

What you should know about anti-dumping measures in procurement under 44-fz and 223-fz

A sample of information provision can be downloaded here. When to provide information regarding anti-dumping measures Anti-dumping measures are covered by electronic auctions and competitions.

Attention

In the first case, a set of documents proving the good faith of intentions must be provided when signing the draft contract. Otherwise, he will be considered unsigned, and the participant - evaded the conclusion.

As for the competition, the participants offer a price in advance, therefore, documents confirming the good faith must be provided as part of the application. Otherwise, it will be rejected. Exceptions to the rule The law provides for several cases when special anti-dumping measures are applied or they are not applied at all.

The latter is possible in the case of the purchase of essential medicines.

What is an anti-dumping measure? anti-dumping measures in the law of the 44th Federal Law of the Russian Federation

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Anti-dumping measures

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Posted by Nasedkina Daria September 12, 2017 Customers are required to apply anti-dumping measures to bidders. Let's consider when and how they are applied in accordance with 44-FZ and 223-FZ. What are anti-dumping measures Anti-dumping measures are used in procurement that is conducted in a competitive manner. Their goal is to prevent dumping, i.e. artificially reducing the final price of the contract by 25% or more. Such discounts are fraught with restriction of competition by unscrupulous participants, as well as the risk for customers to receive a low-quality product or service. Of course, there are times when honest suppliers can bring down the price even below the cost price, for example, for the sake of entering the market. So they look forward to promising work. But, as practice shows, more often such schemes are aimed precisely at eliminating competitors.
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; 2) by the procurement participant with whom the contract is concluded, when sending the signed draft contract to the customer during the auction. If such a participant fails to comply with this requirement, he shall be deemed to have evaded the conclusion of the contract.
If the procurement commission recognizes the proposed contract price as unjustified, the contract with such a participant is not concluded and the right to conclude a contract passes to the auction participant who offered the same as the auction winner, the contract price or the contract price proposal of which contains the best conditions for the contract price, following the conditions proposed by the auction winner.

Anti-dumping measures during procurement are applied when conducting

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, other federal laws and regulatory legal acts of the Russian Federation, as well as approved and the Procurement Regulations posted in the Unified Information System (EIS). According to Part 2 of Art. 2 223-FZ Procurement Regulations is a document that regulates all procurement activities of the customer and must contain procurement requirements, including the procedure for preparing and conducting procurement procedures (including procurement methods) and conditions for their application, the procedure for concluding and executing contracts, as well as other provisions related to procurement. This means that each customer independently develops his own Procurement Regulations, in which he prescribes the procurement methods, the procedure for their preparation and implementation, incl.
See text in future edition. 9. If the subject of the contract for the conclusion of which a tender or auction is being held is the supply of goods necessary for normal life support (food, means for the provision of ambulance, including specialized ambulance, medical assistance in an emergency or urgent form, medicines, fuel), a procurement participant who has proposed a contract price that is twenty-five percent or more below the initial (maximum) contract price is obliged to provide the customer with a justification for the proposed contract price, which may include a letter of guarantee from the manufacturer indicating the price and quantity of the supplied goods, documents confirming availability of the goods at the procurement participant, other documents and calculations confirming the ability of the procurement participant to deliver the goods at the proposed price. ConsultantPlus: note.

The procedure for evaluating bids to avoid unjustified price reductions during procurement

Today we will talk about how, within the framework of competitive procedures under 223-FZ, it is necessary to limit the influence of the contract price (criterion of the contract price) on the result of evaluating and comparing bids. Why is this needed? In most cases, the customer does not need a price reduction, contrary to the opinion of the Federal Antimonopoly Service and other authorities, the authors of the procurement reforms. The logic is simple: due to the price reduction, the quality of the supplied goods / works / services decreases. That is why, within the framework of procurement, customers are faced with the concept of dumping.

Dumping (from the English dumping - "dumping"): the sale of goods and services at artificially low prices. Dumping prices are significantly lower than market prices, and sometimes even lower than the cost of goods or services.

Why and when do procurement participants use dumping?

In case of an acute and urgent need for funds, when you need to receive an order at any cost, counting "at random". After all, it is necessary to support the company, pay salaries to employees and somehow cover their expenses.
In order to obtain contact with the customer.
With the aim of "breaking up" the procurement and extortion of funds from the winner of the procurement procedure and the customer.

That is why it is necessary to apply “anti-dumping measures”, which are not spelled out in 223-FZ, but they can always be established in the Procurement Regulations. According to 44-FZ, these measures are expressed in increased contract security (in one and a half amount): if the participant reduced the price by more than 25%, then the customer is obliged to request increased contract security.

Many customers in the Procurement Regulations provide for measures to protect their interests from economically unjustified price reductions when making purchases. The following tools exist:

As in 44-FZ: through the establishment of an increased amount of security for the execution of the contract (1) and / or the need for the participant to provide documentary evidence of the validity of the contract price offered by him (2). As a basis, the developers take Article 37 of the Law "On the Contract System" and include it in the Regulation.

Example 1.if, during the procurement, the procurement participant with whom the contract is concluded offers the contract price, which is twenty-five or more (?) Percent lower than the initial (maximum) contract price, the contract is concluded only after such participant provides security for the execution of the contract in the amount, exceeding one and a half times (?) the amount of security for the execution of the contract specified in the procurement documentation, but not less than in the amount of the advance (if the contract provides for the payment of the advance).

How effective is this measure? From the speaker's point of view, it is not very effective, since it does not rid the customer of those participants who want to violate the procurement procedure and get any contract by offering a low price. Also, in this case, the customer is not protected from those who file complaints and earn money by “demolishing” procurement procedures. Thus, it is worth solving the problem before it occurs.

Example 2. If, during the procurement, the procurement participant proposed the contract price reduced by 25 percent or more (?) In relation to the initial (maximum) contract price specified in the procurement documentation, the procurement participant recognized as the winner of the procurement procedure or the only participant, the application which corresponds to the procurement documentation, is obliged to provide the Customer with a written justification of the proposed contract price, 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, an estimate for the performance of work, other documents and calculations , confirming the ability of the procurement participant to supply goods, perform work, provide services at the proposed price.

This measure arises already at the stage of concluding a contract, so it can also be considered ineffective. Dumping is illegal, so you can resist it: arrange the documentation in such a way that no participant will understand how to fill it out correctly.

Through the establishment of a procedure for evaluating and comparing bids, which make the use of dumping for the procurement participant senseless and ineffective.

Case from practice: in 2011 there was a series of 10 auctions, 200 applications were submitted. 190 were rejected, only 10 remained. Applications were legally rejected, but a scandal arose. In order not to create unnecessary noise, it is much more efficient and preferable from the point of view of the interests of the customer to remove dumping by using the procedure for evaluating and comparing bids in the procurement documentation.

How to do it? Apply the following measures:

The weight (significance) of the criterion for the contract price, including the "floating" (variable) weight (significance) of the criteria for evaluating and comparing bids for participation in the procurement procedure when the price of the procurement participants decreases below certain values \u200b\u200b(in relation to the NMCC). In the framework of 223-FZ, the customer, when establishing the weight (significance) of the criterion, the price of the contract is bound only by its Procurement Regulations, that is, he can establish any weight (significance) of the criterion "contract price" (any percentage, as prescribed in the Regulations). It is possible for the customer to use "floating" (variable) weight (significance) criteria for evaluating and comparing applications. If you put 10% on the price, and the rest - on non-cost evaluation criteria, then the price will practically not affect the results of the procedure. What is "floating" criterion weighting?

Example. When carrying out the procurement procedure, the customer has the right to establish different values \u200b\u200bof the significance of the criteria for evaluating bids for cases when a procurement participant submits an application for participation in the procurement procedure containing a proposal for the contract price, which: 1) up to twenty-five percent (?) Below the initial (maximum) contract price; 2) twenty-five and more (?) Percent below the initial (maximum) contract price. In the case of filing an application for participation in the procurement procedure containing a proposal for the contract price by twenty-five or more (?) Percent below the initial (maximum) contract price, the value of the significance of such a criterion as the contract price is set equal to ten percent of the sum of the values \u200b\u200bof the significance of all criteria evaluation of applications.

The big advantage of 223-FZ: the criteria can be prescribed in the Procurement Regulations on your own. The contract price will not be the deciding factor.

The use by the customer of "floating" (variable) weight (significance) when evaluating and comparing bids makes it senseless to use dumping by the procurement participants.

Application of the evaluation formula according to the criterion "contract price", in which the proposals of the procurement participants are evaluated not in relation to the lowest of the offered prices, but in relation to the initial (maximum) contract price specified in the procurement documentation.
The use of a special coefficient (indicator) for reducing the contract price when evaluating and comparing bids when the price of procurement participants decreases below a certain framework (in relation to the NMCK).

There are also procurement innovations: indicators of the contract price reduction factor, that is, the criterion for deviating the contract price. This order was found when comparing judicial practice.

Legal position: the use by the customer of the price rejection criterion in order to exclude an economically unjustified reduction in the contract price by the procurement participants is legitimate.

Resolution of the Arbitration Court of the North-West District of February 12, 2016 in case No. A56-28921/2015

Practical example: the housing and communal services company purchased services for the repair and maintenance of elevators in St. Petersburg. The following moment was spelled out in the tender documentation: the rating awarded to the participant's application according to the specified criterion is determined by the formula, which includes the price deviation coefficient. The value of the price deviation coefficient is set by the customer depending on the contract price reduction proposed by the bidder: if the bidder proposed a price reduction from 0% to 5%, then the price deviation criterion is equal to "1", from 5% to 15% - "1.5 ", From 15% to 25% -" 2 ", from 25% to 33% -" 1.5 ", more than 33% -" 1 ".

Knowing the practice of your region, you can predict decisions. The territorial body of the FAS cannot ignore the position of the Arbitration Court of its region. The customer substantiated his actions with a submission from the prosecutor's office of the St. Petersburg District, which said that during the repair and maintenance of elevators, prices had been reduced earlier, which led to ineffective spending of budget funds. That is, the customer has substantiated why he needs it. Using this approach, it is possible to "draw" any outcome of the bid comparison and evaluation phase. Taken together, all measures give the desired result of the assessment. This can be used not only for the classical purposes of "anti-dumping", but also when there is a problem with VAT accounting when evaluating and comparing bids.

The problem of VAT accounting when evaluating and comparing bids and its solution using "anti-dumping" measures

Many people believe that it is impossible to solve the VAT problem in the procedure for evaluating and comparing applications. But this is not the case. Some customers need VAT refunds, so it is not profitable for them to work with a supplier who applies a simplified taxation scheme.

The basis for comparing price offers is established. The participant applying the VAT is deducted this 18%, and the quotations are estimated at real.

In fact, the price may not change or fall at all, but the supplier will be given an advantage at the stage of evaluating and matching bids.

Legal position: in the order of evaluating and comparing bids, it cannot be established that the price proposals of procurement participants with VAT are evaluated excluding VAT, since the evaluation procedure applies to all procurement participants, including those applying a different tax regime.

Resolution of the Arbitration Court of the Far Eastern District of July 29, 2015 in case No. А73-14973 / 2014

What is the logic of the court and the Federal Antimonopoly Service? The fact that the use of VAT deduction from the price proposals of procurement participants who are payers of the specified tax in the assessment of applications may, which the complainant did not refute, lead to the creation of preferential conditions for these participants compared to participants applying the simplified taxation system. That is, lead to the creation of unequal conditions and, accordingly, the restriction of competition, which is contrary to paragraph 2 of part 1 of Article 3 of the Procurement Law.

As the Board of Appeals correctly determined, the procurement procedure established by the company in the tender documentation allows a decrease in the price offer of a participant who is a VAT payer by the amount of VAT accounted for, and the price offers of participants applying a different tax regime remain unchanged.

An example of illegal settlement:

An example of a legal calculation of points: initial (maximum) contract price: 100 rubles 2nd application: Participant No. 1: price 95 rubles, including VAT 14.49 rubles Participant No. 2: price 84 rubles (16% drop) Price variance coefficient if it falls to 15% - 2, over 15% - 1. The number of points for participant No. 1: (100-95): 100 x 100 \u003d 5 points Multiplying by the coefficient of deviation 2, we get 10 points The number of points for participant No. 2: (100 -84): 100 x 100 \u003d 16 points Multiplying by the price deviation coefficient 1, we get 16 points The difference in points according to the criterion price of the contract between participant No. 1 and No. 2 \u003d 6 points If we set low significance (weight) according to the criterion price of the contract (for example , 10%), then participant number 1 will have: 5 points x 0.1 \u003d 0.5 points; participant number 2: 16 points x 0.1 \u003d 1.6 points.

Thus, with the help of anti-dumping measures, you can achieve the desired result and know 100% of the trading results. This is done not through a single criterion for evaluating and comparing bids, but through controlled non-cost criteria. You can prescribe certain criteria by which you can find out the final scores: the time of work, the delivery time of the goods, the warranty period, the presence or absence of an advance, and so on.

Participants' questions

Why is the Central Office of FAS Russia not fighting dumping? Indeed, in certain types of purchases, for example, in construction, it is possible to limit the offer to reduce the price by no more than 10%.

There is a corruption component in the imposition of the electronic auction system. It is a fact that the interests of large Russian banks are being lobbied during the reform of state purchases. These are hundreds of billions of rubles of funds that are circulated in them. That is why the main method of procurement is electronic auction.

Is the payment order essential?

Depending on the type of contract. If the parties call these conditions significant and write it down in the contract.

Contract up to 100,000 rubles. Should the contract price not exceed 84,000 rubles excluding VAT?

The contract price can be 100,000 rubles, VAT is paid in full.

One participant offered the price excluding VAT. How to read the price criterion?

As written in the Bid Evaluation and Matching Procedure. It is established in the Procurement Regulations.

If they are, then yes. Typically, terms of reference and specification are part of the contract.

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 offered, which is twenty-five or more percent lower than the initial (maximum) contract price, or is offered the sum of prices of units of goods, work, services, which is twenty-five or more percent lower than the initial amount of prices of the indicated units, the contract is concluded only after such participant provides a security for the execution of the contract in an amount exceeding one and a half times the amount of the security for the performance of the contract specified in the documentation competition or auction, but not less than in the amount of an advance (if the contract provides for the payment of an advance).

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 offered, which is twenty-five percent or more lower than the initial (maximum) contract price, or is offered the sum of prices of units of goods, work, services, which is twenty-five or more percent lower than the initial amount of prices of the indicated units, the contract is concluded only after such a participant provides the security for the execution 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 part 3 of this article, with the simultaneous provision by such a participant of the security for the performance of the contract in the amount of the security for the performance of the contract specified in the procurement documentation.

(see text in previous edition)

3. Information that confirms the good faith of a procurement participant includes information contained in the register of contracts concluded by customers, and confirming the performance of such a 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 a party forfeits (fines, penalties). In this case, the price of one of such contracts must be at least twenty percent of the initial (maximum) contract price specified in the notice of the procurement and the 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 in 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 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), indicating the reasons for rejecting such an application, is brought to the attention of the procurement participant who sent the application, no later than the working day following the day of signing the specified protocol. If a procurement participant in the case provided for in Part 2 of this Article, as part of an application for participation in an open tender, a tender with limited participation, a two-stage tender, a closed tender, a closed tender with limited participation, a closed two-stage tender did not provide information confirming its good faith in accordance with with part 3 of this article, the contract with this participant is concluded after providing him with a security for the performance of the contract in an amount one and a half times higher than the amount of security for the performance of the contract 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 part 3 of this article shall be provided by the procurement participant upon sending the signed draft contract to the customer. If such a participant, recognized as the winner of the tender or auction, does not fulfill this requirement or the procurement commission recognizes the information provided for in part 3 of this article, 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 by the customer in the unified information system no later than the working day following the day of signing the specified protocol.

(see text in previous edition)

6. The security specified in parts 1 and this article shall be provided by the procurement participant with whom the contract is concluded, prior to its conclusion. A procurement participant who has not fulfilled this requirement is recognized as evading the conclusion of the contract. In this case, the evasion of the procurement participant from concluding a contract is documented in a protocol, which is posted in a unified information system and communicated to 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 \u200b\u200bof the significance of the criteria for evaluating applications for cases when the 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 or more percent below the initial (maximum) contract price.

8. In the cases provided for by paragraph 2 of part 7 of this article, the value of the significance of such a criterion as the price of the contract is set equal to ten percent of the sum of the values \u200b\u200bof the significance of all criteria for evaluating applications.

(see text in previous edition)

9. If the subject of the contract for the conclusion of which a tender or auction is being held is the supply of goods necessary for normal life support (food, means for the provision of ambulance, including specialized ambulance, medical assistance in an emergency or urgent form, medicines, fuel), the procurement participant who offered the price of the contract, the sum of the prices of units of goods is twenty-five percent or more lower than the initial (maximum) price of the contract, the initial sum of prices of units of goods, along with the requirements provided for by this article, must provide the customer with a justification of the proposed price of the contract, the sum of prices goods, which may include a letter of guarantee from the manufacturer indicating the price and quantity of the supplied goods (unless the quantity of supplied goods cannot be determined), documents confirming the availability of the goods with the procurement participant, other documents and calculations confirming the ability of the participant to Purchase to carry out the delivery of goods at the proposed price, the sum of the prices of units of goods.

(see text in previous edition)

1) by the procurement participant who offered the price of the contract, the sum of prices for units of goods is twenty-five or more percent lower than the initial (maximum) price of the contract, the initial sum of prices for units 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 the procurement commission recognizes the proposed contract price, the sum of the prices of units of goods unreasonable, the application 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;

(see text in previous edition)

2) by the procurement participant with whom the contract is concluded, when sending the signed draft contract to the customer during an open tender in electronic form, tender with limited participation in electronic form, two-stage tender in electronic form, auction. If such a participant fails to comply with this requirement, he shall be deemed to have evaded the conclusion of the contract. If the procurement commission recognizes the proposed contract prices, the amount of unit prices of goods 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 price of the contract, the amount of prices of units of goods or a contract price proposal of which contains the best conditions for the contract price following the conditions proposed by the winner of this competition or auction. In these cases, the decision of the procurement commission is drawn up in a protocol, which is posted in the unified information system and communicated to all procurement participants no later than the working day following the day of signing the specified protocol.

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 artificially lower 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 the 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 outstanding. In addition, dumping contributes to a general drop in the level of work (services provided) and the quality of supplied products.

1.2 Dumping scheme "Ram"

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" was and is likely to remain the only working tool in the competition for a long time. Anti-dumping measures were not provided for in the previously effective 94-FZ, therefore, cases of a serious decline during trading were quite common. The so-called "Ram" scheme was a favorite among careless suppliers.

Let me briefly recall the meaning of this scheme. As a rule, three organizations were involved 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 NMCK). Then two other participants entered the game, who as quickly as possible knocked down the NMCC of the contract until the submission of quotations 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 incorrect 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 arrival of 44-FZ, the situation changed for the better, but, in my opinion, very insignificantly. So, what anti-dumping measures appeared in 44-FZ?

According to part 1 of article 37 44-FZ, if during a tender or auction NMCK 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 security for the execution of the contract specified in the documentation for the tender or auction, but not less than in the amount of the advance (if the contract provides for the payment of the advance).

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

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

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

- or one and a half times security for the execution of the contract;

- or documents confirming the good faith of such a participant + the enforcement of the contract established in the documentation.

1.4 For which purchases are anti-dumping measures applied?

Many procurement participants mistakenly believe that anti-dumping measures are applied to absolutely all procurement procedures, including and. According to Article 37 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 its good faith by providing information on executed contracts for a certain period of time before the date of filing an application for participation in a tender or auction:

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

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

Important! Revealing the inaccuracy 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 is missing from the register?

If a contract with the Customer has been 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 about the conclusion of the contract and its execution, the Customer is administratively liable.

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

1. If a competition is held for the performance of research, development or technological work, the Customer can set different values \u200b\u200bfor the evaluation criteria for applications with a price reduction of up to 25% and over 25% of the NMCK (part 7 of Art. 37 44-FZ);

2. If goods are purchased for the normal life support of the population (food, ambulances, medicines, fuel, etc.), in addition to the usual anti-dumping measures (one and a half times contract enforcement 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 44-FZ):

a letter of guarantee from the manufacturer indicating the price and quantity of the supplied goods (in free form);
documents confirming the availability of goods at the procurement participant (invoice, receipts);
other documents and calculations confirming the ability of the procurement participant to deliver 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 has offered a price of all purchased medicines, reduced by no more than 25% relative to their maximum selling price registered in accordance with the legislation on the circulation of medicines.

As you can see, with the arrival of 44-FZ, the requirements for procurement participants who resort to dumping have tightened. However, it is difficult to say that this radically changed the situation for the better.

At first, those participants who used dumping before 44-FZ also continue to use it. Of course, this “pleasure” has become more expensive, but not enough to completely abandon it.

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

Only a combination of factors, such as bid security, anti-dumping measures, contract enforcement, fines and penalties, as well as the absence of an advance, cut off negligent suppliers from purchases. That is, anti-dumping tools are efficient only in the complex of 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, other federal laws and regulatory legal acts of the Russian Federation, as well as approved and posted in a unified information system ( EIS) Procurement Regulations.

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

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

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

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