What contracts confirm good faith according to 44 fz. Integrity and business reputation of the procurement participant

The desire to “give away” a contract to acquaintances is far from always necessarily due to corruption - often there is an element of personal trust here. I trust the supplier - I conclude an agreement with him: "this one will not let you down." There is no such trust in suppliers emerging from the competition: they will break the deal, put defective goods, violate the deadlines ... In a situation where most contracts are concluded “in last moment”, the failure of the contract will deal a blow not only to the reputation, but also to the financing of the budget recipient in the future.

In the law "On contract system in the field of procurement of goods, works, services to meet state and municipal needs, special attention was paid to strengthening measures that stimulate the integrity of both parties.

Let's take a closer look at a few of them.

1. Inclusion in the register of unscrupulous suppliers (contractors, performers)

Inclusion in the register of unscrupulous suppliers is not only (and not so much) a loss of image, but a very real legal liability (in the form of limitation of eligibility), the essence of which is “protective”. A person included in such a register may not be allowed to participate in the procurement of goods, works, services to meet state and municipal needs for two years.

This is one of the most tangible sanctions for suppliers.

Despite the absence of differences in names, registries of unscrupulous suppliers on this moment three. Register, formed in accordance with the procedure established by Law No. 94-FZ (which, as of January 31, 2014, includes 4455 entities), the register, formed in accordance with the procedure established by Law No. 44-FZ, and the register, formed in accordance with the procedure established by Law No. 223 -FZ.

Within two years from the date of entry into force of the new law (that is, until the end of 2015), the customer will have the right to establish a requirement that there is no information about the procurement participant and in the register of unscrupulous suppliers formed under Law No. 94-FZ. At the beginning of 2016, this registry will be archived and removed from public access as outdated. As mentioned above, after two years, a person included in the register must be removed from it.

Grounds for inclusion in the register of unscrupulous suppliers

The conditions under which a supplier can be included in the RNP, in 94-FZ () and in 44-FZ () are almost identical. Recall this:

• evasion from concluding a contract (including failure to provide timely security for the performance of the contract);
• termination of the contract by a court decision (in 94-FZ there was a clause: “in case of a material violation of the terms of the contract”);
• adoption by the customer of a decision on unilateral termination of the contract in connection with a material violation of its terms by the second party.

The customer has the right to decide on a unilateral refusal to perform the contract on the grounds provided for by the Civil Code of the Russian Federation for a unilateral refusal to perform certain types obligations, provided that this was provided for in the contract ().

The customer is obliged to make a decision on unilateral refusal to perform the contract, if during the execution of the contract it is established that the supplier (contractor, performer) does not comply with established requirements to the procurement participants or provided false information about his compliance with such requirements, which allowed him to become the winner in determining the supplier (contractor, performer) ().

2. Contract enforcement and anti-dumping measures

Please note that from now on, the customer is obliged to establish a contract enforcement requirement in almost all cases of procurement (minor exceptions are indicated in).

The "fork" of the size of the enforcement of the contract is set at:

• from 5 to 30% of the initial (maximum) contract price, if the initial (maximum) contract price is equal to or less than 50 million rubles;
• from 10 to 30% of the initial (maximum) contract price, if the initial (maximum) contract price exceeds the specified amount. If the contract provides for the payment of an advance payment, then the amount of the security for the performance of the contract cannot be less than the advance payment, even if the amount of the advance payment exceeds 30 percent of the initial (maximum) price of the contract. In the latter case, the security is set in the amount of the advance payment.

Enforcement of the contract may increase following the results of competitive procedures. This rule is established in, referred to as " anti-dumping measures". Strictly speaking, the measures described in it are not anti-dumping, but guaranteeing.

Anti-dumping measures are protection of a “fair price”. In 44-FZ, no one will dispute the price (however low, that is, "dumping", it may be), if the supplier confirms his good faith. This can be done in this case in three ways.

The first is the provision of security for the performance of the contract in an increased amount.

It is applied when during the competition or auction the initial (maximum) price of the contract is reduced by 25% or more:

• if the transaction amount is more than 15 million rubles, the supplier provides security for the performance of the contract in one and a half times the amount (but not less than the amount of the advance payment, if the contract provides for the payment of an advance payment) ();
• if the transaction amount is 15 million rubles. or less, then the supplier provides security for the performance of the contract in one and a half times the amount or confirms its good faith on the date of filing the application ().

The second is confirmation of the supplier's good faith documented at the time of application.

As can be seen from the previous paragraph, it is applied provided that the transaction amount is 15 million rubles. and less, in cases when during the competition or auction the maximum price of the contract is reduced by 25% or more.

The good faith of the supplier can be confirmed by the information contained in the register of contracts. This information must indicate one of the following facts:

• The procurement participant has completed 3 or more contracts within 1 year before submitting the application without penalty;
• The participant has executed 4 or more contracts within 2 years prior to the submission of the application, of which at least 75% of the contracts were executed without fines and penalties;
• The participant has fulfilled 3 or more contracts within 3 years before submitting the application without fines and penalties.

Moreover, in each of the described cases, the price of one of the contracts must be at least 20% of the initial (maximum) price ().

Information confirming the good faith of the supplier, who reduced the contract amount by 25% or more following the results of the tender, is provided by the supplier in advance. If the participant does not provide information about his good faith as part of an application for participation in the tender, then a contract with him is concluded after he provides security for the performance of the contract according to the model described in the first version ().

When conducting electronic auction information about the supplier's integrity is transmitted when a signed draft contract is sent to the customer. If the supplier does not comply with this requirement, or if the information provided is found to be unreliable, the contract is not concluded with him, and the participant is recognized as having evaded the contract ().

The third is the rationale for the proposed price.

This method of confirming good faith is used when the subject of the contract is the supply of goods necessary for normal life support (food, means of providing medical care, drugs, fuel, etc.).

If a participant in such a tender or auction offered a contract price 25% below the maximum, he is obliged to provide the customer with a justification for the proposed price. This may be a letter of guarantee from the manufacturer or other documents and calculations ().

The only truly anti-dumping measure in Article 37 of Law No. 44-FZ is the right of the customer to establish different significance values ​​for the criteria for evaluating applications that offer a price less than 25% below the maximum and 25% or more below the maximum.

3. Elimination of conflict of interest and prevention of corruption

The fight against "interested parties" in Russian legislation is still timid. But the main thing here is to start. There is progress compared to Law No. 94-FZ.

The first step is a new requirement for procurement participants: “there is no conflict of interest between the procurement participant and the customer”.

A conflict of interest in the contract system refers to cases in which the head of the customer, a member of the procurement commission, the head contract service of the customer, the contract manager are married to individuals who hold the positions of directors, presidents or other management bodies legal entities- participants in the procurement, with individuals - participants in the procurement or are close relatives of the specified individuals ().

The third step is to disclose information about all co-executors and subcontractors.

If the initial (maximum) price of the contract when making a purchase exceeds 1 billion rubles (when making a purchase for federal needs) or 100 million rubles (when making a purchase for regional and municipal needs), the contract must indicate the obligation of the supplier to provide information about all co-executors, subcontractors who have concluded subcontract(s) with a supplier (contractor, performer), the price of which or the total price of which is more than 10% of the contract price ().

This information is provided to the customer by the contractor within ten days from the date of conclusion of the contract with the co-executor (subcontractor). At the same time, the contract must provide for liability for failure to provide this information by collecting from the contractor a penalty for each day of delay in fulfilling such an obligation in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation.

True, all liability is limited only to financial sanctions. Failure to provide this information by the contractor does not entail the invalidity of the concluded contract on this basis.

Nadezhda Abakumova, expert CEPM "Consultant"

In part 3 of Art. 37 federal law dated 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 - Law N 44-FZ) states that contracts confirming the good faith of the supplier must be executed without applying to such a participant forfeits (fines, penalties). The supplier declares contracts in confirmation of his good faith, which were not fully executed (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 the procurement participant of contracts terminated by agreement of the parties without applying liability measures to the procurement participant is information confirming the good faith of such a participant. However, it is possible that the procurement participant will have to defend his case in court.

Position justification:
As follows from the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - 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 fixed amount or information confirming the good faith of such a participant as of the date of filing an application in accordance with paragraph 3 of this article.
According to Law N 44-FZ, 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 a participant of contracts in accordance with any of the three options provided for by this rule, at its discretion (see in connection with this clarification of the Ministry of Economic Development of the Russian Federation in letters dated 07.12.2016 N D28i-3260, dated 08.11.2016 N D28i-2911). In these cases, the price of one of the contracts must be at least 20% of the price at which the procurement participant is invited to conclude a contract in accordance with Law N 44-FZ. This information must be provided by the auction participant when sending the signed draft contract (Law N 44-FZ) to the customer.
The norm of Law N 44-FZ does not allow determining whether information about a contract executed by the counterparty in good faith (without the application of 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 scope 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, see, for example, in the answer Legal Consulting Service on the Question: A contract for the supply of food products has been concluded. The customer wants to terminate it and conclude 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 the 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 objectives of the procurement through the interaction of the customer with the supplier (contractor, performer) in accordance with civil law. At the same time, by virtue of the above norm, the execution of the contract implies acceptance, payment not only for the contract as a whole, but also for individual stages of its execution (clauses 1, 2 of the specified norm).
In accordance with the Civil Code of the Russian Federation (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 execution. At the same time, according to the Civil Code of the Russian Federation, in the event of a change or termination of the contract, obligations are considered changed or terminated from the moment the agreement of the parties on the change or termination of the contract is concluded, 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 judicial order- from the moment the court decision to amend or terminate the contract enters into force. From the foregoing, it follows that the change 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 the contract, the obligations under which are fulfilled in full.
The logic of these reasoning underlies the conclusions of the law enforcement practice, which does not recognize as information confirming the good faith of the counterparty, information about contracts that were terminated during execution by agreement of the parties (as due to the fact that the customer lost the need for the volumes of goods supplied performed works that were specified at the conclusion of the contract, and for other reasons). Thus, in the decision of the Federal Antimonopoly Service for St. information system(hereinafter referred to as the EIS) there were no complete acts of work performed; the work performed under these contracts is not fully paid, and in the UIS these contracts have the status "Execution terminated" (see a similar conclusion in the decision of the OFAS on Murmansk region dated September 26, 2016 N 06-09 / RNP-51-64).
At the same time, we note that it does not follow from the above general norms of civil law on the performance of obligations and the performance of a contract that the obligations of a contract terminated by agreement of the parties are unfulfilled. The agreement by the parties of the terms on the fulfillment of an obligation is not completely, but in a certain part of it does not contradict the norms of the Russian Federation on the fulfillment of obligations (the Civil Code of the Russian Federation) and corresponds to the principle of freedom of the parties in determining the terms of the contract (the Civil Code of the Russian Federation). The execution of the contract for the purposes of N 44-FZ, as already noted, implies, among other things, acceptance, payment for individual stages of the execution of the contract (, Law N 44-FZ).
It seems to us that the establishment of a requirement to provide, for the purposes of Law N 44-FZ, exclusively contracts executed in the initially agreed volumes, contradicts the meaning of this rule. Indeed, in part and Law N 44-FZ we are talking on confirmation of the good faith of the procurement participant, the termination of the contract by agreement of the parties is obviously not evidence of bad faith of one of them. Moreover, by general rule of the Civil Code of the Russian Federation, the good faith 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 06/23/2015 N 25 "On the application by the courts of certain provisions of Section I of Part One Russian Federation"). Accordingly, the absence of facts of the application of penalties (fines, penalties) under contracts, albeit terminated ahead of schedule, testifies in favor of 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, as it limits the number of bidders capable of reducing the contract price by more than 25%, only to those who, during the periods specified in Law N 44-FZ concluded and executed contracts in full initially agreed volume.
Such a formalized approach may affect subsequent decisions of procurement participants under those contracts, the objective need to terminate which periodically arises from customers. Contract executors - potential participants subsequent purchases may avoid termination by agreement of the parties and insist on meeting the customer’s actually absent need, which, in turn, will contradict such procurement principles as the principle of responsibility for the effectiveness of ensuring state and municipal needs, the principle of efficient procurement (, Law N 44- FZ), 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 above arguments, in our opinion, testify in favor of the fact that information confirming the good faith of the procurement participant also includes information confirming the performance by such a participant of contracts that were terminated by agreement of the parties.
In conclusion, we note that the above is our expert opinion. Unfortunately, judicial practice We have not been able to find on this issue. For an official clarification on this issue, we recommend that you contact 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:
Legal Consulting Service Expert GARANT
Chashina Tatiana

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

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

It will be necessary to confirm the integrity of the supplier when the customer has objective reasons for doubting the reliability of the counterparty. Conscientiousness is confirmed by providing information on the fact of execution of government contracts for a certain period of time.

Why is verification of good faith necessary?

Widespread in market economy, and in the state order since the existence of the market public procurement, the practice of excessive price reduction has become widespread, in order to achieve some other goal, in addition to the obvious profit. This method competition has a generalized name "dumping", and is a negative element of normal competitive relations, because in the case of its application, other market participants lose the opportunity to make a profit, and the participant who applied dumping most often will not receive it, having worked at a loss. But since in the market of state and municipal procurement The most common criterion for determining the winner of the auction was and remains the criterion of the lowest price, the existence of dumping in this market is a necessary attribute for several reasons.

Firstly, this is due to the imperfection and optionality of the methodology for substantiating the initial price by state customers. This allows them to set prices that are far from market prices when publishing a notice. As a rule, customers deliberately inflate initial prices in order to make the auction more likely to take place, and the customer has a minimal risk of not spending budget funds. For the same reason, the initial price and its justification are often deliberately formed under the allocated limits of budgetary obligations. This is fairly easy to establish in most cases, you just need to carefully study the rationale for the initial price, where it is very common to use exactly the same prices when using different sources information about them.

Secondly, lowering the initial price is, in most cases, the only way to win the auction, which, in the conditions of developed competition in individual markets, leads to inevitable dumping. In the period before the entry into force of 44 Federal Laws, the state did not regulate or protect customers from dumping in any way. But when preparing draft 44 of the Federal Law, the discussion of the mechanism for combating dumping in public procurement was the most relevant and acute issue, since by that time dumping had a serious impact on the state order market and carried very significant risks. As a result, Article 37 44 of the Federal Law appeared, which contained a mechanism for determining dumping and ways to protect against it.

It was found that, as a general rule, dumping is a reduction in the initial price by 25 percent or more of the NMTsK. Thus, a situation can often arise when the question of even one penny can determine whether there was dumping or not. Taking into account the widespread overestimation of the initial contract price by customers, it is worth noting that the emergence of dumping protection mechanisms has not at all reduced the very phenomenon of dumping, it is still common in the public procurement market. This is partly because the mechanisms themselves do not look intimidating to most participants. Let's consider them in more detail.

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

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

Information and documents confirming the integrity of the supplier

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

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

Also, the supplier’s good faith confirmation information must meet one of the following conditions:

1. three or more Civil Codes completed within a year prior to the date of filing the application without violations;
2. 4 or more Civil Codes completed within 2 years prior to the date of application submission, 75% of which are without violations;
3. three or more Civil Codes completed within three years prior to the date of filing the application without violations.

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

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

The form of confirmation of information about the good faith of the supplier is not established. But since the winning bidder must provide information from the contract register, the most appropriate option is to provide registry numbers, with a brief listing in tabular form the main conditions that the GC must meet in order to confirm the good faith of the supplier. It is not necessary to send scanned copies of contracts to the customer, with payment and acceptance documents attached, all the information the customer needs is contained in the register of contracts.

If the customer from the register of contracts establishes that the information does not comply with the above conditions, then the participant will be recognized as having evaded the conclusion of the Civil Code with further inclusion in the RNP during the auction. During the competition, his application will be rejected.

Exceptions

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

In the case of the purchase of medicines that are included in the list of necessary and essential medicines, a price reduction of twenty-five percent or more relative to the maximum selling price registered in accordance with the law is recognized as dumping. In this case, the reduction relative to the initial price is not taken into account.

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

The Department for the Development of the Contract System of the Ministry of Economic Development of Russia considered the appeal.

In accordance with Part 3 of Article 37 of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ) to information, confirming the good faith of the procurement participant includes the information contained in the register of contracts concluded by customers and confirming the performance by such participant during:

one year prior to the date of filing an application for participation in a tender or auction of three or more contracts (in this case, all contracts must be executed without the application of penalties (fines, penalties) to such a participant);

two years before the date of filing an application for participation in a tender or auction of four or more contracts (at the same time, at least seventy-five percent of the contracts must be executed without the application of penalties (fines, penalties) to such a participant);

three years before the date of filing an application for participation in a tender or auction of three or more contracts (in this case, all contracts must be executed without the application of penalties (fines, penalties) to such a participant).

Thus, the procurement participant, at its discretion, provides information on executed contracts according to any of the three options provided for by Part 3 of Article 37 of Law N 44-FZ.

At the same time, according to Part 2 of Article 37 of Law N 44-FZ, if during the auction the initial (maximum) price of the contract 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 the initial (maximum) price of the contract, the contract is concluded only after such a participant provides a security for the performance of the contract in the amount specified in part 1 of article 37 of Law N 44-FZ, or information confirming the good faith of such a participant as of the date of filing the application in accordance with part 3 of article 37 Law N 44-FZ.

At the same time, we draw your attention to the fact that the clarifications of the body state power, if this body is endowed in accordance with the legislation of the Russian Federation with special competence to issue clarifications on the application of the provisions of regulatory legal acts. In accordance with the Regulations on the Ministry of Economic Development of Russia, approved by Decree of the Government of the Russian Federation of June 5, 2008 N 437, the Ministry of Economic Development of Russia is not empowered to clarify the legislation of the Russian Federation.

Department Director development of the contract system

M.V. Chemerisov

Document overview

In accordance with Law N 44-FZ, the procurement participant must confirm his good faith. To do this, he provides information from the register of contracts, confirming the execution by such a participant during the year before the date of filing an application for participation in the auction of three or more contracts executed without applying sanctions to the participant; within two years before the date of application - four or more contracts (at the same time, at least 75% of the contracts must be executed without sanctions); within three years prior to application - three or more contracts executed without application of sanctions.

The procurement participant, at its discretion, provides information on executed contracts for any of the three indicated options.

In addition, if during the auction NMTsK is 15 million rubles. and less and the procurement participant offered a price that is 25 percent or more lower than the NMTsK, the contract is concluded only after such participant provides security for the performance of the contract.