Anti-dumping measures during procurement are applied during the procurement. You can log in using one of the social network accounts Is the order of payment an essential condition

Dumped in the sphere public procurement understood price policy participant, providing 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.

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

And the winner was the participant who managed to make a 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-baked 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 good faith 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 said decision of the procurement commission shall be 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 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?

1. 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.
2. In order to get in touch with the customer.
3. 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 execution 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:

1. 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. When conducting 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 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. In the 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.

2. 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.
3. 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, and 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) price of the contract: 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.

Suppliers dumped, dumped,

yes not dumped 1

Unlike the legislation on the contract system 2 , the law on public-corporate procurement 3 does not provide for any special measures aimed at protecting the interests of customers and procurement participants from .

Dumping refers to cases where products are offered at prices below their normal cost (this is how dumping is defined in the General Agreement on Tariffs and Trade (GATT), which underlies the activities of the World Trade Organization (WTO).

The reasons for taking anti-dumping measures are obvious: the customer tries to protect himself as much as possible from the risks of failure to fulfill obligations by the supplier 4 (in terms of terms and quality, as well as the need to re-purchase).

Of course, there are situations when some individuals can really provide a significant price reduction compared to most competitors due to innovative high-tech solutions, labor mechanization, efficient production, the acquisition of bulk batches of materials on exclusive terms, the availability of their own resource base, logistics, the availability of full-fledged "equivalents" goods of a different price category, etc.

But, unfortunately, they are rather an exception to the rule, and such opportunities are usually identified and taken into account by the customer even during the purchase.

1 Purchasing tongue twister.
2 Federal Law of 05.04.2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs", hereinafter - the Law on the contract system, Law No. 44-FZ.
3 Federal Law No. 223-FZ of July 18, 2011 "On Procurement of Goods, Works, Services by Certain Types of Legal Entities".
4 In what follows, by supplier we also mean (depending on the subject of the contract) the performer and the contractor.

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There is no smoke without fire…

It should be noted that participants may have many reasons for dumping, and not all of them cause damage to the customer. These include, for example:

the initial (maximum) price noticeably exceeds the current market price (a consequence of the customer's mistake);

partial compensation for downtime of the resources available to the supplier (personnel, machinery, equipment, premises, etc.);

urgent need for financial resources, the need to obtain funds for the payment of loans (salary, etc.) in the absence of other orders;

implementation of marketing activities (“sales”) and winning “contracts of prestige” (for further use of information about the execution of the contract of a status customer for marketing purposes);

development of formal qualifications in order to access in the future to participate in the struggle for more profitable orders (when choosing a supplier for the fulfillment of which requirements for work experience are established or such experience is one of the criteria for evaluating applications);

the need to eliminate residues (seasonal products);

the need to quickly reduce inventory, etc.

Yet more often the goals of dumping participants are much more prosaic and sadder for the customer, including:

struggle for the market (for example, the displacement of the other 5 by the dealer);

disruption of the procurement procedure (including for the formal reason for the customer to switch to a less competitive procedure provided for in such a case in the procurement regulation, for example, procurement from a single supplier on the basis of a failed auction 6);

gaining experience by staff (customer - "guinea pig" and "polygon");

sale of obsolete, expired, remanufactured and counterfeit 7 products;

manipulation of the result of the competitive procedure, including by reducing the interest in further participation in it by bona fide bidders (for example, the "ramming" scheme for an electronic auction);

creating a reserve for non-competitive receipt of subsequent, larger, orders (for example, winning an order for design in order to include requirements in the project documentation that ensure victory when choosing a contractor for a controlled company 8);

revision of the conditions during the execution of the contract, including changes in prices, specifications, terms, fictitious acceptance of non-delivered products 9 ;

ensuring super-economy due to violations of legal requirements (wages, mandatory payments and deductions, production safety, etc.);

poor-quality fulfillment of obligations under the contract (use of materials that do not match in quality, qualification of personnel, etc.).

In order to avoid similar embarrassments in the future (and not only in terms of dumping thresholds), customers can be advised in the procurement regulations to indicate that interest calculations are carried out with an accuracy of a percentage (or a fraction of a percent), and roundings are made up 18 .

For example: "fractional values ​​are rounded to two decimal places according to the mathematical rounding rules."

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How to deal with dumping or “if you want peace, prepare for war!” nineteen

Many customers, when regulating their procurement activities, do not think about protection against abnormal price reductions or are limited only to anti-dumping measures provided for by the rules of the contract system. There are only three of them, and the scope of such instruments in the Law is very limited:

provision of security increased by one and a half times (but not less than the size of the advance payment 20);

different significance of price criteria when evaluating bids with dumping;

justification of the proposed price of the contract and the ability to fulfill it on the stated terms.

For example, Aeroflot PJSC allows the customer to use all of these options as anti-dumping measures, and if, when performing work (rendering services), it is necessary to have an admission certificate issued by the SRO 21, the participant must also provide an SRO opinion on the possibility of performing work ( provision of services) at the price offered in the application.

Also, the provision on the purchase of the airline specifically stipulates that price reductions are not allowed due to the reduction of taxes and fees, including taxes provided for by special tax regimes, to the budgets of the budget system of the Russian Federation.

The State Space Corporation Roskosmos 22 and the State Corporation Rostec 23 use only the first tool in order to combat dumping, requiring, when the price is reduced by 25 percent or more, that the procurement participant provide 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 purchase documentation. It is curious that they do not require such a thing if the dumping price reduction occurred in the course of pre-contractual negotiations between the customer and the procurement participant.

In general, the arsenal for protection against dumping is much richer. These mechanisms include:

rejection of the application with dumping or cancellation of the purchase;

the obligation to substantiate the possibility of executing the contract at the stated price (this is one of the most effective methods, but requires significant costs for implementation);

additional requirements for the execution of the contract (for acceptance, examination, on-site inspections of the supplier, etc.);

confirmation of good faith (usually - successful execution of similar contracts in the past, which, however, does not guarantee against problems in the future);

setting the maximum allowable value for the assessment (“dumping cut-off”: “if a price reduction of more than 25% is proposed, the application is assigned 100 points according to the “price” criterion” - i.e. a further price reduction does not bring additional points to the procurement participant );

the use of range intervals to reduce the significance of criterion 24 (for example, participants are ranked as the offered price increases, and then divided, depending on the places, into 4 groups, the first group gets 100 points, the second - 65, the third - 25 ...) ;

increased security for the performance of the contract (for example, if the price is reduced by more than 20%, the participant must provide security for the performance of the contract at the conclusion of the contract in one and a half times, but not less than the advance payment);

different significance of the criteria in the assessment (without dumping, the significance of the price is 80%, with dumping - 20%);

corrective (reducing and increasing) coefficients when assessing according to price criteria.

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19 Si vis pacem, para bellum (lat.) - Cornelius Nepos, biography of the Theban commander.

20 And in the case of relatively small purchases - confirmation of good faith by indicating previously successfully executed contracts.

21 SRO is a self-regulatory organization.

22 Regulations on the Procurement of Goods, Works, and Services of the State Space Corporation Roscosmos (as amended by the decision of the Supervisory Board of the State Corporation Roscosmos dated June 29, 2016 No. 6-NS).

23 Unified Procurement Regulations of the Rostec State Corporation (Approved by the Supervisory Board of the Rostec State Corporation by Minutes No. 2 dated March 18, 2015).

24 This technique is also often used to control the outcome of a competitive procedure when the desired bidder wins slightly on one criterion but lags far behind on another.

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Let's consider the last tool in more detail using an example. 25

When evaluating applications by the criterion "price" (its significance is 30%), the following formula is used:

Rai = ((Amax - Ai) / Amax) x 100 x L

Amax – initial (maximum) contract price;

Ai - proposal of the i-th participant;

L - price deviation coefficient.

Price deviation factor (L)
The participant of the request for proposals proposed a price reduction from 0% to 5%
A participant in the request for proposals proposed a price reduction of more than 5% to 15%
The participant of the request for proposals proposed a price reduction of more than 15% to 25%
The participant of the request for proposals proposed a price reduction of more than 25% to 33%
The participant of the request for proposals proposed a price reduction of more than 33%

Thus, in the case of using the approach described above, both insufficient price reduction and its understatement are taken into account:

	Suggestion 1	Suggestion 2	Suggestion 3
without L

As for the possibility of rejecting an application with dumping, such a solution is not common in practice, but it does occur. For example, according to Procurement Regulation 26, the customer reserves the right to reject the bid if the price offered in it, in combination with other information specified in the bid, is abnormally underestimated (by 25% 27 or more of the initial maximum price of the contract) and there are reasonable doubts about the ability of the participant to perform the contract on the proposed terms.

However, in its pure form, the use of such a solution is not recommended, since it has signs of limiting competition. Therefore, it is more correct to reject such an application only if the procurement participant cannot justify the price. Or, as a kind of "stop tap", in such situations - to cancel the purchase (but in this case, its other participants may rightly consider that their rights have been violated).

Of course, the use of all the above dumping protection tools in practice generates a lot for both the customer and the procurement participant.

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25 Resolution of the Arbitration Court of the North-Western District of February 12, 2016 in case No. А56-28921/2015.
26 Regulations on the Procurement of Goods, Works, Services of OJSC RTComm.RU (approved by the decision of the Board of Directors of OJSC RTComm.RU, Minutes No. 237 dated December 22, 2014. Similarly, in the Regulations on the Procurement of Goods, Works, Services of PJSC " Bashinformsvyaz (version 2) (approved by the decision of the Board of Directors of PJSC Bashinformsvyaz, Minutes No. 10 dated September 21, 2015.
27 Or another percentage specified in the procurement documentation.

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Bad advice to a procurement participant or how not to justify a price reduction

The rationale for lowering the offer price often confuses the procurement participant. Let us consider one such example 28 in which the winner of an electronic auction sent a signed draft contract to the customer at once with two justifications for the dumping reduction 29 .

The first option was an estimate compiled on the basis of the estimate and regulatory framework of OSNBZH-2001 for the initial (maximum) price and a table from which it followed that the price reduction would be obtained by reducing such budget items as “overhead costs” and “estimated profit » (by applying reduction factors). At the same time, no specific explanations were provided due to which measures or sources the reduction in costs for these items will be achieved.

The analysis carried out by the customer clearly showed that the practical implementation of such a reduction in ways that do not contradict Russian law (for example, in compliance with the minimum wage requirements with all mandatory ones) is simply not possible.

The second option partially duplicated the first one - an estimate was presented, compiled on the basis of the estimate and normative base of OSNBZH-2001 for the initial (maximum) price, in which it was indicated that a reduction factor should be applied to the final amount.

The reasons given for its use were as follows:

Payroll (labor costs) - through the use of new technologies in the production of work and the involvement of more qualified workers in the production of work;

materials - by purchasing materials at wholesale prices in the nearest settlements;

EMM (expenses for the operation of machines and mechanisms) - due to the rational lease of mechanisms.

At the same time, as in the first version, there was no specifics. It was not indicated what kind of "new technologies" will be applied, nor the types of work and the list of professions for which the participant planned to use workers of higher qualification.

At the same time, it was quite rightly noted that, other things being equal, attracting workers with a higher salary, on the contrary, should increase costs, because their wages are paid at higher tariff rates. Here we can recall an aphorism from army humor: a company of soldiers with shovels can replace an excavator. But if you decide to argue the opposite, you should clearly sign it in the justification.

As for the materials, just a simple declaration is not enough. A list of prices for materials, a proposed list of organizations and localities from which materials will be purchased at “wholesale prices”, price lists from prospective suppliers and their comparison with average market prices for the range of materials used should be submitted.

A similar gap was observed in terms of the cost of operating machines and mechanisms - the concept of "rational lease of mechanisms" was not deciphered. It was necessary to provide a list of the mechanisms used (machines, equipment) and the expected volume of its use, the cost of rent, the alleged lessors of the mechanisms and their price lists.

The absence of such justification led to the conclusion of the court (and earlier - the customer and the commission of the FAS Russia) that the "rationalization" of the rental of mechanisms associated with a reduction in the time or volume of use of mechanization during work, ceteris paribus, should increase the use of labor, an increase in labor costs and, consequently, labor costs.

And already as a “control shot in the head” the court’s conclusion that the provision of two options for justifying the reduction in the price of the contract at once could mislead the customer due to the fact that it is impossible to draw unambiguous conclusions about what criteria and indicators will be used reduced cost of the contract.

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28 Decision of the Arbitration Court of the Novosibirsk Region dated December 19, 2016 in case No. А45-11853/2016.
29 As in a court joke, “Do you have an alibi? “Oh yes, three!”

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Don't ask anyone for anything... Will they offer it themselves?! thirty

If the customer uses the tool to justify the proposal for dumping, it is important to clearly define the obligation for the participant to provide relevant information and documents, their composition and other requirements.

Sometimes the customer seeks to provide flexibility in work, for example, by establishing that documents can be requested by the commission. This often causes problems both for the participants and for the customer himself.

For example, 31 in its procurement regulations, the customer has established that a dumping bid is rejected if the price of the contract (contracts) proposed in it, in combination with other information specified in the bid, is abnormally low and the customer has reasonable doubts about the ability of the participant to fulfill the contract on the proposed conditions.

At the same time, the procurement commission has the right to request from the participant the structure of the price of the contract proposed by him and the rationale for such a price of the contract. And the participant who submitted such an application is obliged to provide the structure of the proposed price of the contract and the rationale for such a price of the contract.

Such wording in the procurement regulations and documentation can lead to disorientation of the procurement participant: is it necessary to provide documents on an initiative basis (in applications or when signing a contract) or wait for the request of the customer's commission?

In the considered example, the bid of the participant recognized as the winner of the tender contained a dumping price. However, the request for the structure of the proposed price and its justification were not made by the commission.

As a result, the courts came to the conclusion that the procurement regulations and the procurement documentation do not contain indications of the mandatory submission by the participant of the application containing the dumping price, the structure of the contract price offered by him and the rationale for such contract price, and also they do not contain indications of the mandatory rejection of an application with a dumping price in case of failure to provide the information requested by the procurement commission.

“The aforementioned mislead procurement participants regarding the composition and content of an application for participation in an electronic auction and may lead to the creation of advantages for one of the procurement participants, which is contrary to the principles of equality, fairness, non-discrimination and unreasonable restrictions on competition in relation to procurement participants, established by paragraph 1 of this Article. 2 hours 1 tbsp. 3 of Federal Law No. 223-FZ and part 1 of Art. 17 of Federal Law No. 135-FZ,” the court pointed out.

This situation can be avoided by unequivocally defining in the procurement regulation and, accordingly, the procurement documentation: either the price justification is mandatory included in the application (or sent in the prescribed manner, for example, along with a signed draft contract), or is provided only at the request of the commission of the customer .

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30 A free interpretation of the immortal quote from The Master and Margarita by M. Bulgakov: “Never ask for anything. Never and nothing, and especially for those who are stronger than you. They will offer and give everything themselves!

31 Resolution of the Arbitration Court of the Ural District of December 24, 2016 in case No. А60-27171/2015.

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Summing up

The examples described above show that it is problematic for the customer to completely eliminate the risks that arise when submitting abnormally cheap offers and working with a supplier on dumping terms. However, minimizing them by competently finalizing the procurement regulations and procurement documentation is quite realistic.

As a definition of the dumping threshold, it seems appropriate to consider the deviation from the average (calculated without taking into account anomalous deviations) price of procurement participants, and as the main tool, the obligation to substantiate the ability to fulfill obligations on the declared conditions by the dumping procurement participant (price structure, resources, etc.) in combination with confirmation that he has a positive experience of working under similar contracts and more thorough control of each stage of the execution of the contract.

Having chosen the necessary "weapon" from the available arsenal, it is important to carefully determine the order of its use in the procurement regulation, not forgetting to improve as law enforcement practice develops. Therefore, the process of improving the procurement rules at the customer should take place regularly, since the legislation does not limit the number and frequency of amendments to the procurement regulation.

Webinars of this teacher:

Anti-dumping measures are one of the special rules provided for by 44-FZ, aimed at protecting customers and suppliers from unfair competition. Customers are obliged to apply anti-dumping measures to bidders if they have crossed a reasonable line of price reduction at the auction. Consider when and how they are applied according to 44-FZ and 223-FZ.

What are anti-dumping measures

Anti-dumping measures are applied when making purchases that are carried out by competitive methods. Their goal is to prevent dumping, i.e. artificial reduction of the final contract price by 25% or more. Such discounts are fraught with restriction of competition by unscrupulous participants and the risk for customers to receive a low-quality product or service.

There are cases when honest suppliers bring down the price even below cost, for example, for the sake of entering the market. They do not count on promising work. But, as practice shows, more often such schemes are aimed at eliminating competitors.

As a precautionary measure, the winning bidder either provides increased performance security or proof of good faith. In some cases, he will be required to justify the final cost.

Differences in 44-FZ and 223-FZ

If dumping was revealed during the auction, the winner must confirm good faith with documents, attaching them to the signed contract. Otherwise, it will fall into the register of unscrupulous suppliers.

If increased security is chosen, the participant is obliged to present it before concluding the contract.

Anti-dumping measures under 223-FZ are applied somewhat differently. The text of the law does not mention them. But part 2 of Art. 2 223-FZ gives the Regulations on Procurement the right to regulate all procurement activities of the customer, including the preparatory stages. The customer has the right to introduce his own rules in the fight against dumping. They are either the same as in the law on the contract system, or different.

How to apply

When the anti-dumping measures 44-FZ are applied, the enforcement of the contract increases by 1.5 times, compared to that specified in the documentation, if the NMTsK is above 15 million rubles.

Since 01/01/2019, the rules for applying anti-dumping measures have been clarified with an initial maximum contract price of up to 15 million rubles. Interpretation of Art. 37 44-FZ has ceased to be twofold. Since this year, anti-dumping measures have been applied in this way: it is either securing the performance of a contract in one and a half times, or ensuring its performance in a “standard” one-time amount, together with information about good faith.

It is impossible to provide “good faith” without money or a bank guarantee as a security for the execution of a government contract.

It is important to note that when purchasing scientific, design or technological works through a competition, the customer has the right to evaluate applications with a normal decrease (up to 25%) according to one criteria, and with dumping - according to others (parts 7 and 8 of article 37).

If food, fuel, items for emergency and emergency medical care are purchased, then the participant with the dumping offer is obliged to provide the customer with a price justification. For these purposes, use:

• a letter of guarantee from the manufacturer of the product;
• documentary evidence of the availability of goods;
• other papers confirming the possibility of delivery.

On July 1, 2019, part 13 of Art. 37 44-FZ. It obliges the customer to prescribe in the state contract a condition on the prohibition to transfer an advance payment if such a contract is signed with a procurement participant who offered a price 25 or more percent lower than the NMTsK. This reduces cases of artificial and unjustified price reductions by unscrupulous procurement participants who do not plan to fulfill their obligations in order to exclude such participants from receiving an advance.

Features of application in procurement for SMP and SONKO

If the procurement is carried out with restrictions for SMP and SONCO, the participant is exempted from providing security for the performance of the contract, taking into account anti-dumping measures, if, prior to the conclusion of the contract, it provides information from the register of contracts on the execution of at least 3 contracts (excluding legal succession) within 3 years before the date of filing the application . These contracts must be executed without the application of penalties to it, and the sum of their prices is not less than the NMTsK (the maximum value of the contract price). If this information is not available, the participant will provide security for the performance of the contract, taking into account anti-dumping measures in the usual manner. But the security is calculated from the price of the contract, and not from the NMCC, and cannot be less than the advance. This is indicated in Part 6, 8.1 of Art. 96 44-FZ.

Responsibility

For lack of information about anti-dumping measures, they will be fined, under Part 4.2 of Art. 7.30 Administrative Code, for 3000 rubles. An official will be punished for approving tender documentation, documentation about an auction, about holding a request for proposals, for determining the content of a notice on holding a request for quotations in violation of the requirements provided for by the legislation on the contract system.

When anti-dumping measures are not applied

Exceptions to the rule on the application of anti-dumping measures include several situations. Do not take such measures in the following cases:

• at an electronic auction, which is held at the price of a unit of goods, work or services;
• if they did not provide for the enforcement of the contract under Part 8 of Art. 96 44-FZ;
• if you conclude an energy service contract;
• if you purchase medicines from the Vital and Essential Drugs List and the price of all medicines is reduced by no more than 25 percent relative to their registered maximum selling price (part 12 of article 37 of 44-FZ).

Download the letter of the Ministry of Finance of October 13, 2017 No. 24-02-08/67122

Download the letter of the Ministry of Economic Development of January 13, 2017 No. D28i-289

Download the letter of the Ministry of Economic Development of August 17, 2016 No. D28i-287

Article 37. Anti-dumping measures during tenders and auctions

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.

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.

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 working day following the day of signing the specified protocol. If the procurement participant, in the case provided for in paragraph 2 of this article, does not provide information confirming his good faith in accordance with 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.

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 working day following the day of signing the specified protocol.

6. The security specified in parts 1 and 2 of 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:

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

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.

10. The justification specified in paragraph 9 of this article shall be provided:

• by the procurement participant who offered the price of the contract, the sum of unit prices of goods is twenty-five percent or more lower than the initial (maximum) price of the contract, the initial sum 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, a closed tender , a closed competition with limited participation, a 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 said decision of the procurement commission shall be 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;
• 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 prices, 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 price of the contract, 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 placed 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.

11. If the winner of a tender or auction is recognized as having evaded concluding a contract, the procurement participant with whom, in accordance with the provisions of this Federal Law, a contract is concluded, the requirements of this article shall apply in full.

12. The provisions of this article shall not apply if, in the course of procurement of medicinal products included in the list of vital and essential medicinal products approved by the Government of the Russian Federation, the procurement participant with whom the contract is concluded offers the price of all purchased medicinal products reduced by no more than than twenty-five percent of their registered, in accordance with the legislation on the circulation of medicines, the maximum selling price.

13. Payment of an advance payment upon execution of a contract concluded with a procurement participant specified in parts 1 or 2 of this article is not allowed.