What confirms the good faith of the auction participant. Integrity and business reputation of the procurement participant

The concept of dumping

Dumping (from English dumping- reset) - in economic theory sale of goods at artificially low prices.

Dumping prices are significantly lower than market prices, are not economically justified, and sometimes even lower than the cost of goods or services.

Dumping in government procurement pursues the goal of including the supplier in the procurement market for government needs and ousting competitors and is expressed in the conclusion by the supplier of a contract with the customer through a significant reduction in price when participating in tenders.

The problem of dumping has spread through the process of open auctions in electronic form within the framework of Law No. 94-FZ. Any suppliers from all regions of Russia could participate in the auction and submit proposals at prices below market prices. There were cases when participants reduced the NMC to zero, and then tenders were held to increase the price.

Negative consequences of dumping

• Failure to fulfill obligations under concluded contacts. Often, after an unjustified reduction in the NMC and the conclusion of a contract, suppliers realized that they could not supply goods, provide services or perform work at the proposed price.
• Supply of goods, performance of work, provision of services poor quality. First of all, this concerned bidding for food supplies: the winning bidders supplied low-quality or expired goods in order to meet the price they offered.
• Termination of contract in judicial procedure.
• Time spent on repeat procurement procedures.

The reform of legislation in the field of state and municipal procurement was intended, among other things, to solve the problem of dumping. In this regard, 44-FZ introduced a rule providing for anti-dumping measures when carrying out competition And auction. The norm is enshrined in Article 37 of the Law on contract system. Application anti-dumping measures when conducting procurement by other means, this is a violation of Law No. 44-FZ and suppliers have the right to appeal such actions of the customer.

Options for applying anti-dumping measures in government procurement

1. If the NMC of the contract is 15 million rubles or less, and the procurement participant offered a price lower by 25% or more, then he is obliged to provide:

• Information confirming the good faith of the participant

2. If the NMC of the contract is more than 15 million rubles, and the procurement participant offered a price lower by 25% or more, then he is obliged to provide only

Ensuring the execution of the contract, 1.5 times the amount specified in the documentation

Information confirming the integrity of the procurement participant

It is often difficult for procurement participants to provide security in an amount exceeding that specified in the documentation by 1.5 times, because it can be quite large amounts. Therefore, the legislator has provided for the possibility of confirming the good faith of the participant. Information confirming the integrity of the procurement participant includes information contained in the register of contracts concluded by customers , and confirming the fulfillment by such participant of obligations under contracts:

• within one year before the date of filing an application for participation in a competition or auction three or more contracts (and all contracts must be executed without penalties (fines, penalties) being applied to such participant);
• if the supplier did not participate in government and municipal procurement within one year before the date of filing an application for participation in a competition or auction, he can provide information confirming the fulfillment of his obligations under four or more contracts during two years (at the same time, at least seventy-five percent of contracts must be executed without the application of penalties (fines, penalties) to such participant);
• or within three years before the date of filing an application for participation in a competition or auction of three or more contracts (in this case, all contracts must be executed without the application of penalties (fines, penalties) to such participant.

Attention!

In these cases price of one of the contractsmust be at least twenty percent of the price, for which the procurement participant proposed to conclude a contract. For example, if the contract price is 100 million rubles, then the procurement participant must provide information on the execution of contracts for the previous period, the price of one of which was at least 20 million rubles.

However, if the NMC is more than 15 million rubles, and the procurement participant offered prices lower by 25% or more, then he no longer has an alternative in the form of the possibility of documenting his good faith, but is obliged to provide increased security for the execution of the contract, one and a half times the amount specified in the documentation.

The procedure for providing information confirming the integrity of the procurement participant

Attention!

The procurement commission rejects the application if this information is recognized unreliable . The decision to reject such an application is recorded in the protocol for determining the supplier (contractor, performer) indicating the reasons for the rejection of the application, and 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 participant is part of the competitive application no information provided , confirming his good faith, a contract with him is concluded after he provides contract security in an amount one and a half times greater than the amount of contract security specified in the tender documentation, but not less than the amount of the advance (if the contract provides for the payment of an advance).

Contest

In case of participation in the competition, information is provided by the participant as part of the application for participation in the competition. In practice, this means that the supplier, having read the tender documentation and calculated that he can offer a price lower than the initial one, for example, by 30%, provides documents confirming his good faith as part of the tender application, in accordance with the gradation established in Art. 37 of the Law on the Contract System. The customer, having received such an application, checks the accuracy of the information about the good faith of the participant in the register of contracts by the register entry number: the fact of the existence of such a contract; correspondence of the price to the specified size; absence of penalties, fines, penalties associated with improper fulfillment of obligations under this contract.

Auction

Attention!

If such participant, recognized as the winner of the auction, fails to comply with this requirement or the procurement commission recognizes the information provided as unreliable, the contract with such participant is not concluded, and he recognized.

In this case, the decision of the procurement commission is formalized in a protocol, which is placed in a single information system and is brought to the attention of all auction participants no later than the business day following the day of signing the specified protocol.

With participation in auction the participant provides information confirming his good faith when sending the signed draft contract to the customer.

Enforcing the contract provided by the procurement participant with whom the contract is concluded, before his imprisonment . A procurement participant who fails to comply with this requirement shall be deemed evaders from concluding a contract. In this case, the procurement participant’s evasion from concluding a contract is documented in a protocol, which is posted in a unified information system and brought to the attention of all procurement participants no later than the business day following the day of signing the specified protocol.

Case studies

1. Inclusion in the RNP of information about the participant who took second place is legal

Example 1.

The winner avoided concluding a contract and the customer offered to conclude it to the auction participant whose application was assigned the second number, with which the participant agreed. However, the contract price he offered was 25% lower than the initial (maximum) contract price. Consequently, anti-dumping measures should be applied to this participant: the provision of increased security for the performance of the contract or information confirming good faith.

The arbitration court upheld the decision of the antimonopoly authority. If the participant whose application is assigned the second number agrees to enter into a contract, he is considered the winner. In the case where the requirements of Art. 37 of the Law are not fulfilled, such a winner is recognized evaders from concluding a contract.

Decision of the Khanty-Mansiysk Arbitration Court Autonomous Okrug- Ugra dated 04/02/2015 in case No. A75-2002/2015

Example 2.

The winner avoided concluding a contract and the customer offered to conclude it to the auction participant whose application was assigned the second number, with which the participant agreed. However, the contract price he offered was 25% lower than the initial (maximum) contract price. Consequently, anti-dumping measures should be applied to this participant: the provision of increased security for the performance of the contract or information confirming good faith.

The specified requirements were not fulfilled by the participant. On this basis, the antimonopoly authority included information about him in the register of unscrupulous suppliers (RNP).

The arbitration court upheld the decision of the antimonopoly authority. If the participant whose application is assigned the second number agrees to enter into a contract, he is considered the winner. In the case where the requirements of Art. 37 of the Law are not fulfilled, such a winner is recognized as having evaded concluding a contract.

(Decision of the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug - Ugra dated 04/02/2015 in case No. A75-2002/2015)

2. The good faith of the participant is confirmed not only by information from the register of contracts

Example 3.

The auction winner, who reduced the contract price by more than 25%, provided the customer with information from the register of contracts confirming good faith when concluding the contract. The customer, considering that the participant had not properly confirmed his good faith, refused to conclude the contract and sent information about the winner to the antimonopoly authority. This information was included in the register of unscrupulous suppliers.

The courts of first and appellate instances declared the decision of the antimonopoly authority invalid.

As it was established by the courts, the winner, to confirm his good faith, presented, among other things, certificates of work performed under several contracts. However, according to the antimonopoly authority, in relation to the auction winner in the register of contracts, the number of entries with the status “execution completed” does not meet the requirements of Art. 37 of Law 44-FZ.

This argument was not accepted, since the discrepancy between the register data and the information provided by the winner on the number of executed contracts may have arisen due to incomplete or untimely entry of information into the register by customers.

(Resolution of the Seventeenth Arbitration Court of Appeal dated March 13, 2015 No. 17AP-980/2015-AK in case No. A60-39881/2014).

Law No. 44-FZ provides for the right of a supplier, when participating in an auction, to provide information confirming good faith, or to ensure the execution of a contract using protocols of disagreements (in order to increase the time for signing a contract and providing information). It must be remembered that in accordance with part 13 of Art. 70 of Law No. 44-FZ, if the winner of an electronic auction does not send the signed draft contract or a protocol of disagreements to the customer after thirteen days from the date of posting the protocol for summing up the results of the auction in the Unified Information System, then he is recognized as having evaded concluding the contract.

Features of the application of anti-dumping measures

1. Law 44-FZ provides for the application of a special procedure for anti-dumping measures when conducting special purchases. For example, such procurements include holding competitions for the implementation of research, development or technological work, as well as for the provision of advisory services.

In such procurements, the customer has the right to establish in the tender documentation different values ​​of the significance of the application evaluation criteria for cases where a tender participant submits an application containing a proposal for a contract price that is up to 25% lower than the minimum contract price.

If the proposal for the contract price for these purchases is 25% or more below the minimum contract price, the value of the significance of such a criterion as the contract price is set equal to 10% of the sum of the significance values ​​of all criteria for evaluating applications, which is carried out in accordance with the Rules approved by the Decree of the Government of the Russian Federation of November 28 .2013 N 1085 for the specified types of work (services) are established in the range from 20 to 80%.

2. 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, emergency equipment, including specialized emergency care, medical care in an emergency or emergency form, medicines, fuel), a procurement participant who proposed a contract price that 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 . This 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 (agreement, delivery note, etc.),

other documents and calculations confirming the ability of the procurement participant to supply the goods at the proposed price.

With participation in competition The participant provides justification as part of the application for participation in the competition.

If the procurement commission, when evaluating an application, recognizes that this document should be provided, but has not been provided, then the commission has the right to reject such an application. Such a decision of the commission is recorded in the protocol of consideration and evaluation of applications for participation in the competition or consideration of a single application for participation in the competition.

If carried out auction, then the letter of guarantee or documents confirming the availability of the goods are presented by the participant to the customer when sending the signed draft contract.

If the participant does not comply with this requirement, does not send Required documents, he is recognized as having evaded concluding a contract.

A draft amendment to 44-FZ has been submitted to the State Duma for consideration, proposing to exclude from the law provisions on anti-dumping measures that are applied when supplying goods necessary for normal life support.

New in anti-dumping measures

In June 2014 in Art. 37 of Law 44-FZ included part 12, which provides for the possibility non-use anti-dumping measures subject to two conditions:

1. procurement is in progress medicines, which are included in the government-approved Russian Federation list of vital and essential medications;
2. the procurement participant with whom the contract is concluded has offered the price of all purchased medicines, reduced by no more than 25% relative to their registered price in accordance with the legislation on circulation medicines maximum selling price.

Answers on questions

Is it necessary to state in the auction documentation that if the supplier reduces the price of food products by more than 25%, then he must provide justification for such a price?

Answer: The supplier is assigned such an obligation by virtue of 44-FZ, and if the customer has not indicated the corresponding requirement in the documentation, he still has the right to demand justification and calculation of such a price, as well as the necessary documents, or to reject the application for failure to provide them. However, to avoid disputes, it is better to provide in the documentation the condition and cases of providing justification.

In part 3 of Art. 37 Federal Law dated 04/05/2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as Law N 44-FZ) states that contracts confirming the integrity of the supplier must be executed without application penalties (fines, penalties) to such participant. The supplier declares contracts to confirm its good faith, which were not fulfilled in full (terminated by mutual agreement) without the application of fines (penalties).
Can such contracts confirm the good faith of the supplier in accordance with the requirements of Part 3 of Art. 37 of Law N 44-FZ?

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

Justification for the position:
As follows from the Federal Law of 04/05/2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as Law N 44-FZ), in cases provided for by these norms, the contract is concluded only after the participant provides security for the performance of the contract in established amount or information confirming the good faith of such participant as of the date of filing the application in accordance with Part 3 of this article.
According to Law N 44-FZ, information confirming the integrity of a procurement participant includes information contained in the register of contracts concluded by customers and confirming the execution of contracts by such participant in accordance with any of the three options provided for by this norm, at its discretion (see in connection with this clarification from the Ministry of Economic Development of the Russian Federation in letters dated December 7, 2016 N D28i-3260, dated November 8, 2016 N D28i-2911). In these cases, the price of one of the contracts must be no less than 20% of the price at which the procurement participant proposed to conclude a contract in accordance with Law No. 44-FZ. The specified information must be provided by the auction participant when sending the signed draft contract to the customer (Law No. 44-FZ).
The norm of Law N 44-FZ does not allow us to determine whether information about a contract executed by the counterparty in good faith (without applying penalties), but in an amount less than originally provided for by the contract terminated by agreement of the parties, can be considered appropriate for the purposes of this article. Such contracts take place in cases where the customer, for objective reasons, loses the need for the full volume of goods, works, services originally provided for by the contract and procurement documentation - in these cases, the contract is terminated by mutual agreement of the parties (for more details on this, see, for example, the answer legal consulting service to Question: A contract has been concluded for the supply of food products. The customer wants to terminate it and enter into a new contract for a smaller volume with the same supplier at the same prices. Is it possible to terminate the contract without paying for the already delivered batch of products?)
As follows from Law N 44-FZ, the execution of a contract includes a set of measures listed in this part, including the acceptance of goods, works and services, their payment, the application of liability measures implemented after the conclusion of the contract and aimed at achieving the goals of the procurement through interaction between the customer and the supplier (contractor, performer) in accordance with civil law. Moreover, by virtue of the above norm, the execution of a contract implies acceptance and payment not only of the contract as a whole, but also of individual stages of its execution (clauses 1, 2 of this norm).
In accordance with the Civil Code of the Russian Federation (we recall that by virtue of Law No. 44-FZ, the legislation on the contract system is based, among other things, on the provisions of the Civil Code of the Russian Federation), the obligation is terminated by its proper fulfillment. Moreover, according to the Civil Code of the Russian Federation, in the event of a change or termination of a contract, the obligations are considered changed or terminated from the moment the parties agree to change or terminate the contract, unless otherwise follows from the agreement or the nature of the change in the contract, and in the event of a change or termination of the contract in court - with the moment the court decision to amend or terminate the contract comes into force. From the above it follows that modification or termination of the contract (including refusal to perform) is possible only in relation to existing (unfulfilled) obligations. At the same time, it is obvious that it is impossible to change or terminate a contract, the obligations under which have been fulfilled in full.
The logic of these arguments underlies the conclusions of that law enforcement practice, which does not recognize as information confirming the good faith of the counterparty, information about contracts that during execution were terminated by agreement of the parties (as due to the fact that the customer no longer needed the volume of goods supplied , work performed, which were specified when concluding the contract, and for other reasons). Thus, in the decision of the Federal Antimonopoly Service for St. Petersburg dated June 24, 2016 N 44-2528/16, the supervisory authority did not recognize information about contracts terminated by agreement of the parties as confirming the good faith of the participant, despite the fact that for such contracts in the unified information system (hereinafter - UIS ) there were no complete certificates of work performed; the work performed under these contracts is not fully paid, and in the Unified Information System these contracts have the status “Execution terminated” (see the similar conclusion in the decision of the Federal Antimonopoly Service on Murmansk region dated September 26, 2016 N 06-09/RNP-51-64).
At the same time, we note that from the above general rules of civil law on the fulfillment of obligations and the execution of a contract, it does not follow that the obligations of a contract terminated by agreement of the parties are unfulfilled. The agreement by the parties on the conditions for the fulfillment of the obligation is not complete, but in a certain part of it does not contradict the norms of the Russian Federation on the fulfillment of obligations (Civil Code of the Russian Federation) and corresponds to the principle of freedom of the parties in determining the terms of the agreement (Civil Code of the Russian Federation). Execution of the contract for the purposes of N 44-FZ, as already noted, also implies acceptance and payment for individual stages of contract execution (Law N 44-FZ).
It seems to us that establishing a requirement for the purposes of Law No. 44-FZ to provide exclusively contracts executed in the initially agreed upon volumes contradicts the meaning of this norm. Indeed, in part and Law No. 44-FZ we're talking about on confirmation of the good faith of the procurement participant, but termination of the contract by agreement of the parties is obviously not evidence of bad faith by one of them. Moreover, according to general rule In the Civil Code of the Russian Federation, the integrity of participants in civil legal relations and the reasonableness of their actions are assumed until proven otherwise (paragraphs three and four of the resolution of the Plenum Supreme Court RF dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I of Part One of the Russian Federation”). Accordingly, the absence of facts of application of penalties (fines, penalties) under contracts, even if terminated early, testifies to the good faith of the supplier (contractor, performer).
We also note that the requirement to provide only contracts executed in the initially agreed volumes limits competition, since it limits the number of bidders capable of reducing the contract price by more than 25%, only to those who, within the periods specified in Law N 44-FZ concluded and executed contracts to the full extent initially agreed upon.
Such a formalized approach can influence subsequent decisions of procurement participants on those contracts, the objective need for termination of which arises from time to time among customers. Contract executors - potential participants subsequent purchases may avoid termination by agreement of the parties and insist on satisfying the customer’s actually absent needs, which, in turn, will contradict such procurement principles as the principle of responsibility for the effectiveness of meeting state and municipal needs, the principle of procurement efficiency (Law No. 44- Federal Law), and in addition to the principles of good faith in the fulfillment of obligations in civil legal relations (Civil Code of the Russian Federation).
The presented arguments, in our opinion, indicate that information confirming the integrity of a procurement participant also includes information confirming the fulfillment by such a participant of contracts that were terminated by agreement of the parties.
In conclusion, we note that what has been said is our expert opinion. Unfortunately, judicial practice We were unable to find any information on this issue. For official clarification on this issue, we recommend contacting the Ministry of Economic Development of Russia or the Federal Antimonopoly Service of Russia. It is also possible that the procurement participant will have to defend his case in court.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Chashina Tatyana

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

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

What, other than the number of years, differs between paragraphs 1 and 3 of Art. 37 44-FZ?

The requirements in these paragraphs differ only in the number of years.
We believe that in this case, the law provides an opportunity to confirm their good faith not only for those companies that have been involved in procurement for a long time and have, for example, 3 completed contracts without penalties over the last 3 years, but also for companies that have been on the market for only 1 year. but active, and managed to complete 3 contracts without penalties.

If a company is only 1 year old and has 3 completed contracts without penalties and 2 with penalties, can we prove our integrity?

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

What is bona fide information?

This is information contained in the register of completed contracts and confirms the participant’s fulfillment of:

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

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

Who decides whether there is sufficient information to support the reasonableness of the proposed price?

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

Competition: the commission may recognize the justification for the proposed contract price as unreasonable, and the application for participation in the competition of such 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 competition or consideration of a single application for participation in the competition.

Auction: the commission may recognize the justification for the proposed contract price as unreasonable, and the contract will not be concluded with such a participant. In these cases, the decision of the procurement commission is documented in a protocol, which is posted in the Unified Information System and brought to the attention of all auction participants.

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

The participant is obliged to provide the customer with a justification for the proposed 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 .

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

Information confirming the integrity of the procurement participant includes information contained in the register of contracts located in the unified information system (UIS).

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

If you take part in a competition or auction and the initial contract price is more than 15 million rubles, if there is a reduction of 25% or more, you must provide the customer with security for the contract in an amount 1.5 times higher than that specified in the documentation. If the initial purchase price in which you participate is 15 million rubles. and less, it is enough to provide confirmation of the supplier’s good faith, in which case the amount of security remains the same.

What documents are needed to confirm the integrity of the supplier?

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

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

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

How is the procurement participant notified that the information confirming its integrity is recognized as reliable?

Competition (Part 4, Article 37 44-FZ)
In the event of a tender, information confirming good faith is provided by the procurement participant as part of the application for participation in the tender. 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 the rejection of such an application and 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.

Auction (Part 5, Article 37 44-FZ)
In the event of an auction, information confirming good faith is provided by the procurement participant when sending the signed draft contract to the customer. If such participant, recognized as the winner of the auction, fails to comply with this requirement, or the procurement commission recognizes the information confirming good faith as unreliable, the contract with such participant is not concluded and he is recognized as having evaded concluding the contract. In this case, the decision of the procurement commission is formalized in a protocol, which is posted in the Unified Information System and brought to the attention of all auction participants no later than the business day following the day of signing the specified protocol.

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

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

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

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

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

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

In accordance with Part 1 of Article 96 of 44-FZ, the customer in the notice of procurement, procurement documentation, draft contract, invitation to take part in determining the supplier (contractor, performer) in a closed way must establish a requirement to ensure the execution of the contract, except in cases , which do not relate to competitions and auctions.

Algorithm for applying anti-dumping measures

Multitender LLC does not guarantee full compliance of materials with legal regulations at the time they are viewed by the user. The materials are presented for informational purposes.

Here we will provide a sample according to which you can fill out a letter with information confirming the good faith of the procurement participant in accordance with Federal Law 44. The supplier may need this letter to reduce the amount of security if the initial maximum contract price is reduced by more than 25% during the electronic auction. . Information about fulfilled obligations to fill out the letter should be taken from the register of contracts.

(Information contained in the Unified Register of State and Municipal Contracts)

According to Art. 37 part 3 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

In accordance with the data provided on good faith, Romashka LLC requests that the contract performance security be reduced from 45% to 30% of the initial (maximum) contract price, which is 30,251.18 (thirty thousand two hundred fifty-one) rubles, 18 kopecks.

We provide information confirming the integrity of Romashka LLC in table No. 1.

No.	Contract details number	Contract status	Order number	Customer name	Contract amount
1.
2.
3.

CEO LLC "Romashka" ____________________ Ivanov I.I.

You can download a sample in .doc format for filling out yourself by clicking on the link.

As part of the anti-dumping measures, the participant may be required to demonstrate good faith. The article will help you understand what is hidden behind this concept and how to confirm your integrity.

What is good faith according to 44-FZ

When the offer of the winner of an auction or competition is 25% or more cheaper than the NMCC, anti-dumping measures are used. This is done in order to prevent competition from being limited by excessively understating the cost of products, as well as to protect customers and, as a consequence, end consumers from poor-quality procurement results.

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

The integrity of the procurement participant under 44-FZ is information from the register of contracts about previously fulfilled obligations.

How to confirm the integrity of the supplier under 44-FZ

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

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

1. Three or more completed contracts within one year prior to the date of application.

   Documents confirming the good faith of the participant in the 44-FZ competition

   No penalties.

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

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

To participate in the competition, documents indicating the honesty of the winner are attached to the competition application. If they are absent, the customer can conclude a deal only after receiving collateral increased by 1.5 times compared to that specified in the documentation. Moreover, this amount must be no less than the amount of the advance, if it is provided for in the documentation.

When dumping prices for electronic auction The supplier is obliged to provide information confirming good faith simultaneously with the signed contract for the current purchase.

The tender commission or the customer directly, depending on the type of procedure, checks the information provided with the register of contracts. If fake or inaccurate information is discovered, the application is rejected (in a competition), or the participant is recognized as having evaded the transaction (in an auction). In the latter case, the results are published in the Unified Information System in the form of a protocol, and the right to execute the transaction passes to the second lowest priced participant. If the latter’s offer is also reduced by 25% or more from the NMCC, then all anti-dumping measures are applied to it.

Sample confirmation of good faith according to 44-FZ

The law does not establish clear requirements for the form of provision of the information in question. Therefore, such documents can be drawn up in any form. But in order to make it easier for the participant to accurately collect all the necessary papers, and for the customer to check them faster, it is convenient to use a table that contains all the information that is required to be provided by law. You can download a sample letter confirming the integrity of the supplier below.

In accordance with Part 1.2 of Art. 37 44-FZ, established anti-dumping measures that apply to participation in competitions and auctions.
If a procurement participant has proposed a price reduction of 25% or more, anti-dumping measures are established, which depend on the initial maximum contract price (IMCP), the threshold of which is set at 15 million rubles.
If the NMCC is less than or equal to 15 million rubles, the contract will be concluded only after the winner provides a contract performance security 1.5 times greater than the amount of the contract performance security specified in the documentation, or information confirming the good faith of such a participant on the date of filing the application.

Sample letter confirming the integrity of the supplier
ON THE FORM

ref no. from ______

Information mail

Society with limited liability"Romashka" (hereinafter referred to as the Company), represented by General Director Ivan Ivanovich Ivanov, acting on the basis of the Charter, confirms the integrity of the Company in accordance with the requirements of Parts 1, 2, 3 of Art. 37 of Federal Law No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”, and provides information on executed contracts:

	Registration number of the contract entry	Customer (name, TIN)	Subject of contract	Conclusion date	Period of execution	Contract price	Application of fines, penalties, penalties
	2011
	year 2012
	year 2013

All information is provided from Unified register state and municipal contracts on the website www.zakupki.gov.ru.

Confirmation of the supplier's integrity from the customer according to Federal Law 44, sample

I confirm the accuracy of the information.

Sincerely,
General Director ________________ Ivanov I.I.
(based on the Charter)

Download a sample letter confirming the integrity of the supplier

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Article. Application of anti-dumping measures under 44-FZ

The lowest proposed contract value is not always the main parameter in choosing the winner when participating in government procurement. 44-FZ also provides for such a criterion as the qualifications of the participant. Let's figure out what this requirement for suppliers is and how to confirm your compliance.

The essence of the criterion “experience and business reputation”

Choosing a counterparty capable of fulfilling the terms of the contract efficiently and promptly always implies a certain risk for the customer. The level of trust in a particular organization consists of a set of certain criteria, such as:

• history of the organization: duration of presence of the business entity on the market according to its profile economic activity, experience and volume of goods supplied, work performed, services;
• means: supplier security material resources necessary for the production and delivery of products, performance of work, provision of services;
• personnel: the presence of qualified specialists and managers at the bidder;
• image: the perception of the organization by clients and society as a whole;
• reliability: completeness and reliability of information provided by the organization.

A high probability of fruitful cooperation is possible with a company that has the largest number of the above positive parameters.

In this regard, the legislator has provided such a tool for predicting successful relationships as assessing experience and reputational potential.

Criteria for evaluation

Resolution No. 1085 dated November 28, 2013 discloses the indicators of non-cost evaluation criteria, but does not define the concept “ business reputation».

Application security and supplier's letter of good faith

The customer needs to ensure a unified and objective approach when ranking and selecting a supplier when conducting various types procurement

Documents confirming the existence of a positive reputation may include, for example, Thanksgiving letters, certificates, diplomas of both the organization itself and its employees.

A certificate for assessing experience and business reputation is also common.

How to properly set the certificate requirement

This question causes the most difficulty. To date, a number of national standards for assessing the experience and business reputation of persons engaged in entrepreneurial activity in different areas:

• general provisions, GOST R 66.0.01-2015;
• architectural and construction design, GOST R 66.1.01-2015;
• engineering surveys, GOST R 66.1.02-2015;
• assessment of experience and business reputation construction organizations and design institutions, GOST R 66.1.03-2016;
• production and sale of fire-technical products, GOST R 66.9.01-2015;
• provision of services that ensure fire safety objects, GOST R 66.9.02-2015;
• services for the transportation of large-sized heavy cargo, GOST R 66.9.03-2016.

The requirement for certificates as part of the application has two points of view. For example, by Resolution of the Thirteenth Arbitration Court of Appeal dated March 3, 2016 No. 13AP-31280/15, the requirement for certificates was recognized as legitimate. And, for example, the Ministry of Economic Development explained that the state customer does not have the right to require participants to have a business reputation index calculated by an organization accredited in the voluntary certification system. The agency notes that according to 44-FZ, the assessment of experience and business reputation does not require obtaining a certificate. Obtaining a document requires significant time and financial costs and is an administrative barrier to participation in the procurement (letter of the Ministry of Economic Development of Russia dated January 19, 2017 No. OG-D28-761).

How to check the certificate of experience and business reputation assessment

Taking into account that a much more significant criterion is the recognition of the supplier by the professional community, and letters of gratitude are easily subject to falsification, the customer can establish in the documentation a requirement for a certificate.

In this case, the participant is required to contact the certification body with a certain package of documents (founding documents, information about employees, copies of contracts confirming experience in similar work, reviews of activities, etc.). The Federal Agency for Technical Regulation and Metrology maintains a list of registered companies. Each organization has internal regulations on the period of provision and cost of the service (on average from 10 working days with a price of more than 100,000 rubles). Certification involves an on-site inspection by auditors of the certifying organization, examination of data for completeness and reliability, and calculation of the final assessment based on the data obtained.

Conscientiousness according to 44-FZ is a characteristic of a procurement participant, which allows the customer to decide whether to conclude a contract with him government contract even in cases where the participant significantly reduces its cost relative to the NMCC. Demonstrated integrity indicates that the potential contractor is reliable and has the necessary experience.

When to prove good faith

Federal Law No. 44-FZ establishes several methods that government customers use when preparing a purchase. Each of these methods is aimed at establishing an adequate price for the purchased product, work or service, which corresponds market conditions. If during the procedure a potential counterparty significantly, by 25% or more, reduces the declared NMCC, this raises doubts about its reliability.

The legislator requires the government customer to apply anti-dumping measures in such situations: if the NMTsK exceeds 15 million rubles, the procurement participant is obliged to provide contract security that is one and a half times the amount established in the procurement documentation. If the NMCC does not exceed 15 million rubles, the participant has a choice:

• provide the usual security, while simultaneously proving the good faith of the procurement participant under 44-FZ;
• provide one and a half security for the fulfillment of their obligations under a future transaction with the customer.

Information confirming the integrity of the procurement participant 44-FZ must be requested by the customer in the event of a significant reduction in the purchase price during: competitive procedures, including in electronic form and auctions.

What is proof of good faith?

How to confirm the supplier’s good faith under 44-FZ is explained in Part 3 of Art. 37 44-FZ. The contractor is recognized as reliable if the register of contracts contains information that he concluded and performed without the application of penalties to him:

• at least three government contracts over the past year;
• at least four government contracts over the last two years - with this option, it is permissible for the contractor to be subject to penalties for a quarter of the contracts;
• at least three government contracts in the last three years.

The price of at least one of the transactions executed by the contractor with government customers must be at least 20% of that offered by the contractor under the current procedure.

If a paper competition is held, information about the experience and performance of a potential contractor is submitted to the customer in a single package of documents with an application for participation. If we are talking about electronic competition or auction, information is provided to the customer simultaneously with the signing of the contract.

How to issue a confirmation of good faith

When talking about justifying the reliability of the contractor, the legislator points to the provision of information contained in the register of contracts. This is public information source. The supplier does not require any special documents; it is only necessary to summarize and provide the customer with information from the register.

The form of such a generalization is not established by law: it can be submitted in the form of a declaration, guarantee or information letter in any form.

Whatever document the contractor documents information about his experience and reliability, it should indicate:

• register number of the executed contract;
• name and tax identification number of the customer;
• price;
• item;
• term of conclusion and period of fulfillment of obligations;
• an indication of the penalties imposed, if any.

As a sample confirmation of good faith, you can use the information letter form.

The information provided by the procurement participant is verified by the customer. If during the inspection the customer reveals that the information provided is unreliable, in the case of a paper tender the participant’s application will be rejected, and if we are talking about an electronic tender or auction, the contract will not be signed, and the contractor will be recognized as having evaded the conclusion.

Upcoming changes in legislation

The President has signed a bill that significantly changes 44-FZ, in particular, the procedure for applying anti-dumping measures and rules for confirming good faith:

1. The basis for the application of anti-dumping measures will soon be not only a reduction of 25% or more in the overall purchase price, but also in units of individual goods, works, and services.
2. The number of options for procurement participants to prove their reliability will be significantly reduced: all contractors, without exception, will be required to provide information on at least three contracts executed over the past three years.
3. For contracts concluded as a result of procedures with a significant reduction in price, advance payment will become impossible.

Explanations on the topic

Main points	Document details	Download
IN letter of guarantee The integrity of the government contract executor is confirmed only by the manufacturer.	Decision of the Khabarovsk OFAS No. 224 of 07/09/2018 in case No. 7-1/373