You can log in using one of the social network accounts. Anti-dumping measures in the course of procurement are applied during the Procurement Participant's Integrity Confirmation

According to the previous law on the placement of government orders (Law No. 94-FZ of July 21, 2005), the main criterion for selecting suppliers and contractors was the price they offered. Contracts were concluded with merchants whose bids were 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. Anti-dumping measures under 44-FZ, the law of 04/05/2013, which entered into force in January 2014, are designed to prevent such situations by preventing auction participants from artificially lowering prices.

Barriers to dumping

Dumping is the sale of goods (works, services) at an artificially low price. The state had to tighten the procedure for holding tenders and auctions, as unscrupulous businessmen and resourceful scammers quickly learned to deceive him. Offering the most low price, and winning the competition according to 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 needed to be increased. Sometimes even, having received an advance, the fraudulent supplier disappeared along with state money.

Therefore, anti-dumping measures are applied under 44-FZ justifiably and not by chance. Their main goal is not to allow suppliers and contractors to win tenders due to unfair (artificial) price reduction for the goods and services offered. It is achieved in two ways (Article 37 of Law No. 44-FZ):

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

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

or 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 payment) without fail.

The criteria for the conscientiousness 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 without any complaints. The information is checked against 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 anti-dumping measures under 44-FZ

So, anti-dumping measures contribute to "cutting off" from competitions and auctions of merchants, for whom the main thing is to conclude a contract, and not to fulfill it. However, they apply only in certain cases.

Additional restraining measures are necessary 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 that prevent artificial low prices apply only to holding tenders and auctions, where state structures. Anti-dumping measures under 44-FZ are not covered by the request for quotations and proposals.

A special procedure has been developed for public procurement of medicines that are vital to the population. Their list is approved by the Government of the Russian Federation. It also establishes the maximum allowable price for such medicines. If bidders reduce the price by less than 25% relative to this value, anti-dumping protective measures are not applied to them.

If suppliers of goods required for the uninterrupted life support of citizens (food, fuel, etc.) reduce the price by more than 25% during the competition, 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 contract security 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 the security will increase to this amount, since with an advance payment exceeding 30% of the contract amount, the amount of the security is set exactly in the amount advance.

Dumped in the sphere public procurement means the price policy of the participant, which provides for a deliberate 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, intentional dumping can turn into unpleasant situations for the customer.

The refusal of the winner to conclude a contract that is unprofitable for him and, as a result, the need to conduct auctions again.
Unfair performance 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 tenders and auctions

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 advent of 44-FZ, the situation changed in better side but, in my opinion, very little.

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

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

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

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

Anti-dumping measures under 44-FZ and 223-FZ

As a precautionary measure, the winning bidder either provides increased performance security 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 to tenders and auctions if, as a result of their conduct, the NMCC is reduced by 25% or more. During the competition, documents confirming good faith are attached to the application.

The commission of the customer checks them, and, in case of detection of inaccurate information, rejects the participant. If dumping was revealed during the auction, the winner must confirm his honest intentions with documents, attaching them to the signed contract.

Otherwise, it may fall into the register of unscrupulous suppliers.

What you should know about anti-dumping measures in purchases under 44-FZ and 223-FZ

An information submission template can be downloaded here. When to provide information regarding anti-dumping measures Anti-dumping measures are provided for under electronic auctions and competitions.

Attention

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

As for the competition, the participants offer a price in advance, therefore, documents confirming 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 where special anti-dumping measures are applied or they are not applied at all.

The latter is possible in the case of the purchase of vital drugs.

What is an anti-dumping measure? anti-dumping measures in the law 44 fz rf

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Anti-dumping measures

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Author: Nasedkina Daria September 12, 2017 Customers are required to apply anti-dumping measures to bidders. Consider when and how they are applied according to 44-FZ and 223-FZ. What are anti-dumping measures Anti-dumping measures are applied in the course of purchases that are carried out by competitive means. Their goal is to prevent dumping, i.e. artificial reduction of 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 cases when even honest suppliers can bring down the price even below the cost, 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 specifically at eliminating competitors.
The specified decision of the procurement commission is recorded in the protocol of consideration and evaluation of applications for participation in the tender or consideration of a single application for participation in the tender; 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 is recognized as having evaded the conclusion of the contract.
If the procurement commission recognizes the proposed contract price as unreasonable, a 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, whose contract price or contract price offer contains better conditions for the contract price, following the conditions proposed by the winner of the auction.

Anti-dumping measures during procurement are applied during

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 placed in the unified information system (EIS) Procurement Regulations. According to part 2 of Art. 2 223-FZ Procurement Regulation 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 the 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 its Procurement Regulations, which prescribes the methods of procurement, the procedure for their preparation and conduct, incl.
See text in a future edition. 9. If the subject of the contract, for the conclusion of which a tender or auction is held, is the supply of goods necessary for normal life support (food, means for providing ambulance, including emergency specialized, medical care in an emergency or urgent form, medicines, fuel), the procurement participant who offered the contract price, which is twenty-five percent or more lower than 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 goods supplied, documents confirming the availability of goods from the procurement participant, other documents and calculations confirming the ability of the procurement participant to supply the goods at the proposed price. ConsultantPlus: note.

The procedure for evaluating bids to avoid unreasonable price reductions when making a purchase

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 (contract price criterion) on the result of evaluation and comparison of applications. 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 bodies, authors of procurement reforms. The logic is simple: by reducing the price, the quality of the goods/works/services supplied decreases. That is why in 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 with the calculation "at random". After all, it is necessary to support the company, pay salaries to employees and somehow cover their expenses.
In order to get in touch with the customer.
With the aim of "breaking down" the purchase and extorting money from the winner of the procurement procedure and the customer.

That is why it is necessary to use "anti-dumping measures", which are not prescribed 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 times): if the participant has 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 in the course of procurement. There are the following tools:

As in 44-FZ: through the establishment of an increased amount of security for the performance of the contract (1) and / or the need for the participant to provide documentary evidence of the reasonableness of the price of the contract offered by him (2). The developers take Article 37 of the Law “On the Contract System” as a basis and include it in the Regulations.

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

How effective is this measure? From the speaker's point of view, it is not very effective, since it does not save the customer from 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 make money on the “demolition” of procurement procedures. Thus, it is worth solving the problem before it occurs.

Example 2 If, during the procurement, the procurement participant proposed the price of the contract, reduced by 25 percent or more (?) in relation to the initial (maximum) price of the contract specified in the procurement documentation, the procurement participant recognized as the winner of the procurement procedure or the sole participant, the application which corresponds to the procurement documentation, is obliged to provide the Customer with a written justification of the proposed price of the contract, which may include a letter of guarantee from the manufacturer indicating the price and quantity of the goods supplied, documents confirming the availability of goods from 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 applications, which make the use of dumping senseless and fruitless for a procurement participant.

Case study: in 2011 there was a series of 10 auctions, 200 applications were submitted. 190 were rejected, leaving only 10. Applications were legally rejected, but there was a scandal. 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 using the procedure for evaluating and comparing applications in the procurement documentation.

How to do it? Apply the following measures:

The weight (significance) of the contract price criterion, including the “floating” (variable) weight (significance) of the criteria for evaluating and comparing applications for participation in the procurement procedure when the price is reduced by the procurement participants below certain values (in relation to the NMCC). Within the framework of 223-FZ, the customer, when establishing the weight (significance) of the criterion, the contract price is bound only by its Procurement Provision, that is, it can set any weight (significance) of the “contract price” criterion (any percentage, as prescribed in the Provision). It is possible for the customer to use a "floating" (changeable) 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 a "floating" weight of criteria?

Example. During the procurement procedure, the customer has the right to establish different values of 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 contract price proposal that: 1) up to twenty-five percent (?) below the initial (maximum) contract price; 2) twenty-five or more (?) percent below the initial (maximum) contract price. In case of filing an application for participation in the procurement procedure containing a proposal for a contract price twenty-five or more (?) percent lower than the initial (maximum) contract price, the significance value of such a criterion as the contract price is set equal to ten percent of the sum of the significance values of all criteria evaluation of applications.

A big advantage of 223-FZ: the criteria can be prescribed in the Procurement Regulations independently. The price of the contract will not be a decisive factor.

The use by the customer of a “floating” (changeable) weight (significance) when evaluating and comparing bids makes it meaningless to use dumping by procurement participants.

Application of the evaluation formula according to the criterion "price of the contract", 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) price of the contract specified in the procurement documentation.
The use of a special coefficient (indicator) for reducing the price of the contract when evaluating and comparing bids when the price is reduced by procurement participants below certain limits (in relation to the NMCC).

There are also procurement innovations: indicators of the contract price reduction coefficient, that is, the criterion for deviation of 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 price of the contract by the procurement participants is legitimate.

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

Example from practice: a housing and communal services company purchased services for the repair and maintenance of elevators in St. Petersburg. The following moment was prescribed 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 in dependence on the contract price reduction proposed by the tender participant: if the tender participant proposes a price reduction from 0% to 5%, then the value of the price deviation criterion is “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 by the presentation of the prosecutor's office of the St. Petersburg District, which said that in the repair and maintenance of elevators, there had previously been a price reduction, which led to inefficient spending of budget funds. That is, the customer justified why he needs it. Using this approach, you can "draw" any result of the stage of comparison and evaluation of applications. Together, all measures give the desired result of the assessment. This can be used not only for classical “anti-dumping” purposes, but also when there is a problem with VAT accounting when evaluating and comparing applications.

The problem of accounting for VAT in the evaluation and comparison of applications and its solution with the help of "anti-dumping" measures

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

The basis for comparing price offers is established. This 18% is deducted from the participant applying VAT, and price offers are evaluated at the real price.

In fact, the price may not change or fall at all, but the supplier will be given an advantage at the stage of evaluation and comparison of applications.

Legal position: in the procedure for evaluating and comparing bids, it cannot be established that the price offers of procurement participants with VAT are evaluated without 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 dated July 29, 2015 in case No. А73-14973/2014

What is the logic of the court and FAS? The fact that the use of the VAT deduction from the price proposals of procurement participants who are payers of the specified tax when evaluating bids may, which the complainant has not refuted, lead to the creation of preferential conditions for these participants in comparison with participants using a 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 appellate board correctly determined, the procurement procedure established by the company in the tender documentation allows for a reduction in the price offer of a participant who is a VAT payer by the amount of VAT taken into account, while the price offers of participants applying a different tax regime remain unchanged.

An example of an illegal calculation:

Example of legal point calculation: initial (maximum) contract price: 100 rubles 2nd bids: Participant No. 1: price 95 rubles, including VAT 14.49 rubles Participant No. 2: price 84 rubles (16% drop) Price deviation coefficient when falling to 15% - 2, over 15% - 1. The number of points for participant No. 1: (100-95): 100 x 100 = 5 points Multiplying by the deviation coefficient 2 we get 10 points The number of points for participant No. 2: (100 -84): 100 x 100 = 16 points Multiplying by the price deviation coefficient 1 we get 16 points Difference in points according to the contract price criterion between participant No. 1 and No. 2 = 6 points , 10%), then participant No. 1 will have: 5 points x 0.1 \u003d 0.5 points for participant No. 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% the results of the auction. This is done not through a single criterion for evaluating and comparing applications, but through controlled non-monetary criteria. You can prescribe certain criteria by which you can find out the final scores: the deadline for the completion of work, the delivery time of the goods, the warranty period, the presence or absence of an advance payment, and so on.

Questions from participants

Why is the Central Office of the 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 terms of imposing a system of electronic auctions. It is a fact that the interests of large Russian banks are lobbied during the public procurement reform. These are hundreds of billions of rubles of funds that are scrolled through them. That is why the main method of procurement is an electronic auction.

Is the order of payment essential?

depending on the type of contract. If the parties call these conditions essential and prescribe it in the contract.

Contract up to 100,000 rubles. The price of the contract should not exceed 84,000 rubles without VAT?

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

One bidder offered a price without VAT. How to calculate the price criterion?

As written in the Order of Evaluation and Comparison of Applications. It is established in the Procurement Regulations.

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

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

(see text in previous edition)

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

(see text in previous edition)

4. In the event of an open tender, a tender with limited participation, a two-stage tender, a closed tender, a closed tender with limited participation, a closed two-stage tender, the information provided for by Part 3 of this article shall be provided by the procurement participant as part of an application for participation in an open tender, a tender with limited participation, two-stage competition, closed competition, closed competition with limited participation, closed two-stage competition. The Procurement Commission rejects such an application if this information is found to be unreliable. The decision to reject such an application is recorded in the protocol for determining the supplier (contractor, performer), indicating the reasons for rejecting such an application, is brought to the attention of the procurement participant who sent the application no later than the business day following the day of signing the specified protocol. If the procurement participant in the case provided for by paragraph 2 of this article, as part of the application for participation in an open tender, a tender with limited participation, a two-stage tender, a closed tender, a closed tender with limited participation, a closed two-stage tender, does not provide information confirming its good faith in accordance with paragraph 3 of this article, a contract with this participant is concluded after they provide a contract performance security in the amount of one and a half times the amount of the contract performance security specified in the procurement documentation.

(see text in previous edition)

5. In the event of an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an auction, the information provided for in paragraph 3 of this article shall be provided by the procurement participant when sending the signed draft contract to the customer. If such a participant, recognized as the winner of a tender or auction, fails to comply with this requirement or if the commission for the procurement of information provided for in paragraph 3 of this article is recognized as unreliable, the contract with such participant is not concluded and he is recognized as evading the conclusion of the contract. In this case, the decision of the procurement commission is drawn up in a protocol, which is posted by the customer in a single information system no later than the business day following the day of signing the specified protocol.

(see text in previous edition)

6. The security specified in parts 1 and this article shall be provided by the procurement participant with whom the contract is concluded before its conclusion. A procurement participant who has not fulfilled this requirement is recognized as having evaded the conclusion of the contract. In this case, the evasion of the procurement participant from concluding a contract is documented in a protocol that is posted in a single information system and brought to the attention of all procurement participants no later than the working day following the day of signing the specified protocol.

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

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

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

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

(see text in previous edition)

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

(see text in previous edition)

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

(see text in previous edition)

2) by the procurement participant with whom the contract is concluded, when sending a signed draft contract to the customer during an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an auction. If such a participant fails to comply with this requirement, he is recognized as having evaded the conclusion of the contract. If the procurement commission recognizes the proposed contract price, the sum of unit prices of goods as unreasonable, the contract with such a participant is not concluded and the right to conclude a contract passes to the procurement participant who offered the same as the winner of this tender or auction, the contract price, the sum of unit prices of goods or whose contract price offer contains the best conditions for the contract price, following the conditions offered by the winner of this tender or auction. In these cases, the decision of the procurement commission is drawn up in a protocol, which is posted in a single information system and brought to the attention of all procurement participants no later than the working day following the day of signing the specified protocol.

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

1. Anti-dumping measures under 44-FZ

1.1 The concept of dumping

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

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

1.2 Taran dumping scheme

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

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

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

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

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

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

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

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

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

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

1.4 What purchases are subject to anti-dumping measures?

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

1.5 Confirmation of the good faith of the procurement participant

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Anti-dumping measures under 223-FZ

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

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

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

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

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