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 of competition bears the generalized name "dumping", and is a negative element of normal competitive relations, since if it is used, 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 the initial prices, so that the auction is more likely to take place, and the customer has a minimal risk of not mastering budget funds. For the same reason, the initial price and its justification are often deliberately formed under the allocated limits of budgetary obligations. In most cases, this is easy enough to establish, 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 of 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 by 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 variants dumping action. The delimiting amount is fifteen million rubles. If the NMCC 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 the Civil Code). 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, indirectly from its norms it can be determined 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 state 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. Therefore, the best option for confirming the integrity of the supplier according to 44 Federal Laws are contracts concluded as a result of tenders.

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 summary in tabular form of 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 a 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 drugs that are included in the list of necessary and essential drugs, 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 register includes those who refused to conclude a won contract or grossly violated the terms of its execution. We wrote in detail about . In this article, we will highlight the important nuances:

• Previously, it was possible to independently declare the absence in the RNP, and there was a chance that the customer would not check this information. Now ETPs automatically check the information and simply do not miss an application from a participant from the RNP.
• The EIS maintains a separate registries according to 44-FZ, according to 223-FZ, according to 615 government decree. Once in one Register, you can still participate in procurement under another law or in commercial bidding.
• If you filed an application without being in the RNP, but got into it during the execution of the contract, this is not a reason to terminate the contract (decision of the Ninth Arbitration Court of Appeal dated April 21, 2015 No. 09AP-11847 / 2015-GK in case No. A40-178922 / fourteen).

Securing a contract

The customer establishes contract security in almost all competitive procurements:

• from 5 to 30% of the NMTs, if the purchase for 50 million rubles. or less,
• from 10 to 30% of the NMTs, if the purchase is more than 50 million rubles,
• not less than the amount advance payment, if it is established in the purchase (part 6 of article 96 44-FZ).

From this amount, fines are withheld for poor-quality non-fulfillment of the contract and penalties for failure to meet deadlines. After the contract is successfully executed, the security is returned.

Anti-dumping measures

44-FZ allows you to reduce the price as much as you like, but if you cross the threshold of 25% of the initial price, you will have to additionally confirm your good faith ( Art. 37 No. 44-FZ ). This is called anti-dumping measures. In any purchases, except for purchases of essential goods, there are two ways to confirm good faith:

1. In purchases for any amount, you can provide security increased by 1.5 times.
2. In purchases cheaper than 15 million, there is another option - to provide the usual security plus successfully executed government contracts. What to consider:

• The customer will accept information strictly from the register of contracts under 44-FZ.
• There must be at least three such contracts, and they must be concluded no later than three years before the conclusion of the current contract.
• All of them must be executed without fines and penalties.
• The amount of at least one of the contracts must be at least 20% of the purchase amount, in which it is necessary to confirm good faith (part 3 of article 37 44-FZ).
• The object of the purchase is not important. For example, you can win a purchase for repairs, and confirm good faith with contracts for cargo transportation.
• It will not be possible to confirm good faith with “small purchases” from a single supplier (purchases up to 300 or 600 thousand rubles), since customers are not required to include them in the register of contracts ( Part 1 Art. 103 44-FZ).

How to find out that the executed state contract is in the Register? On the public procurement website in the tabContracts and agreements you can find any contract by customer name, contract ID and other filters.

If you did not find the contract is not in the Register, first of all contact the customer. He is obliged to upload information to the Register within 7 days after signing the acceptance certificate. If he fails to meet deadlines, he will be fined.

In the procurement of goods necessary for normal life support (food, medicine, fuel, etc.), a different rule applies. If the winner of the purchase lowered the purchase price by 25% below the NMC, he provides the customer with a justification for this price. For example, letter of guarantee from the manufacturer, receipt documents confirming the availability of goods in the warehouse and other documents ( Part 9 of Art. 37 44-FZ).

Qualitative criteria when evaluating an application

Emphasis on quality

In the competition and request for proposals, the customer can use non-monetary evaluation criteria in choosing a supplier - experience, recommendations, qualified employees, etc.

1. A formula that takes into account the largest or smallest number of documents in the application. In this, the one who provided the maximum contracts earns more points, and the rest receive proportionately less.
2. Maximum required (minimum or maximum) number qualification characteristics. For example, an entrant must provide at least five completed contracts to receive points for this criterion. And the maximum you can provide is 10. Anything above 10 will still count as 10.
3. Scale. This is the easiest way to evaluate. In it, each indicator falls into the range and receives a certain number of points. For example, zero contracts - 0 points, 1-3 contracts - 5 points, 5-10 contracts - 10 points.

How to prove good faith?

It is not necessary to show successfully completed contracts only from the Register according to 44-FZ. These can be documents on 44-FZ, 223-FZ and commercial transactions:

• Copies of contracts that reflect the subject of the contract and the time when it was executed.
• Copies of acceptance certificates and payment documents that reflect the scope of work.
• Other documents that confirm the success of the work.

This is not clearly stated in the law, but arbitration courts decide that the customer may require:

• Compliance with the subject of the purchase. If the purchase is for construction, then the executed contracts must be for construction.
• Successful delivery or work. The customer has the right to demand contracts without violations due to the fault of the contractor.

Also, by decision of arbitration, the customer cannot demand:

• The presence of contracts in the territory of a certain region.
• A narrower qualification than the subject of the ongoing procurement.
• Executed contracts in the amount of more than 20% of the volume of the current purchase. For example, if the purchase for the construction of a school is for 74 million, it is enough to have one executed contract for about 20 million.

Different weight for “fair” and “dumping” prices

44-FZ gives the customer the opportunity to reduce the "weight" of the price, which is 25% below the maximum. If the supplier decreases by more than 25%, then the significance of the price will be equal to only 10% of the sum of the significance values ​​of the other criteria for evaluating bids. True, this rule is applied only in competitions for research, development or technological work, as well as providing advisory services ( h. 7-8 art. 37 44-FZ).

What do they want to add?

The concept of increasing the efficiency of budget spending in 2019-2024 states that only qualified participants with experience in contract execution will be allowed into public procurement (Decree of the Government of the Russian Federation dated January 31, 2019 No. 117-r).

• The organization of children's leisure is proposed to be purchased only by a competition with limited participation. Now the purchase of such services is carried out in the form of auctions, requests for quotations or requests for proposals, where the main criterion for selecting the winner is the price of the ticket. As a result, the quality of service delivery suffers.
• They also want to automate the verification of suppliers in register of legal entities brought to administrative responsibility for illegal remuneration.

Text and illustrations are prohibited copy without an active link to the Kontur.Procurement website.

In the comments to the articles you can get answers from other suppliers, and experts will answer

What, besides the number of years, are the differences 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 for the opportunity to confirm their good faith not only to those companies that have been participating in procurement for a long time and have, for example, 3 completed contracts without penalties over the past 3 years, but also to 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 it has 3 completed contracts without penalties and 2 with penalties, can we confirm our good faith?

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

What is Integrity Information?

This is the information contained in the register of completed contracts and confirming the execution by the participant:

• 3 or more contracts within 1 year prior to the date of filing the application, while all contracts must be executed without the application of penalties (fines, penalties) to the participant;
• or within 2 years prior to the date of filing of the application 4 or more contracts, while at least 75% of the contracts must be executed without applying penalties to the participant;
• or within 3 years prior to the date of application for 3 or more contracts, while all contracts must be executed without applying penalties to the participant.

At the same time, the price of one of the contracts must be at least 20% of the price at which the procurement participant is asked to conclude a contract.

Who decides on the sufficiency of information confirming the reasonableness of the proposed price?

This decision is made by the commission of the customer for the implementation of procurement.

Competition: the commission may recognize the justification of the proposed contract price as unreasonable, and the application for participation in the competition of such a participant is rejected. The specified decision of the procurement commission is recorded in the minutes of consideration and evaluation of applications for participation in the tender or consideration of a single application for participation in the tender.

Auction: the commission may recognize the justification of the proposed contract price as unreasonable, and the contract with such a participant is not concluded. In these cases, the decision of the procurement commission is drawn up in a protocol, which is posted in the EIS and brought to the attention of all participants in the auction.

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 rationale for 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, other documents and calculations confirming the possibility 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 is it formed?

The information confirming the good faith of the procurement participant includes the information contained in the register of contracts placed in the unified information system(EIS).

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 tender or auction and the initial price of the contract is more than 15 million rubles, with a decrease of 25% or more, you must provide the customer with a contract performance security in the amount 1.5 times higher than specified in the documentation. If the initial purchase price in which you participate is 15 million rubles. and less, it is sufficient to provide confirmation of the supplier's good faith, in which case the amount of the security remains the same.

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

The supplier must confirm his good faith by providing the information contained in the register of contracts (contracts, acts). To confirm good faith, a letter indicating all the information on the 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 about the recognition of information confirming its good faith as reliable?

Competition (part 4 of 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 rejecting such an application and is brought to the attention of the procurement participant who sent the application no later than the business day following the day of signing the specified protocol.

Auction (part 5 of article 37 44-FZ)
In the event of an auction, information confirming good faith is provided by the procurement participant when sending a signed draft contract to the customer. If such a participant, recognized as the winner of the auction, fails to comply with this requirement, or the procurement commission recognizes information confirming good faith as unreliable, a contract with such a participant is not concluded, and he is recognized as evading the conclusion of the contract. In this case, the decision of the procurement commission is documented in a protocol that is posted in the EIS and brought to the attention of all participants in the auction no later than the business day following the day the protocol was signed.

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

Information is provided for 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 purchases under 94-FZ. To confirm our good faith, can we provide information on executed contracts not only under 44-FZ, but also under 94-FZ?

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

If the customer does not establish a requirement to secure the performance of the contract, and the participant has set a dumping price, what requirements will be imposed on such a participant?

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

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

Algorithm for applying anti-dumping measures

Multitender LLC does not guarantee full compliance of materials legislative norms when viewed by the user. The materials are presented for informational purposes only.

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 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), information confirming the good faith of a procurement participant includes information contained in the register of contracts concluded by customers and confirming the performance by such a participant within :

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 prior to 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 completed contracts for 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 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 law Russian Federation 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.

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.

Dumping is the intentional setting of a lower price than the market price in order to drive out competitors. This is one of the main problems that you have to deal with in public procurement. This cannot but affect the quality of the supplied products or services. In addition, dumping is a tool that violates the openness and accessibility of the auction, when the tender can be won by agreement with the customer, the supplier interested in this purchase.

In this article, we will talk about what criteria exist as an assessment of a conscientious purchase by a supplier.

Adoption of anti-dumping measures in the field of public procurement under Federal Law 44-FZ

In order to prevent dumping (artificially lowering the price of goods), the law provides for a number of anti-dumping measures:

Advance payment by the supplier - provision,

Provision of documentation confirming the integrity of the supplier - information from the EIS (extract from unified register contracts).

The application of anti-dumping measures at the auction (auction or competition) takes place when it is reduced by 25 percent or more.

The size of the NMCC determines the choice of one or another anti-dumping measure. According to article 37 (part 2) of 44-FZ, if the contract price is less than fifteen million rubles, then it is necessary to secure the contract by the supplier or provide an extract from the register of past contracts. If more than this amount, then it is mandatory to ensure the execution of the contract - a bank guarantee (BG) or transfer of an advance to the customer's account.

Information proving the integrity of the supplier

As confirmation of the good faith of the supplier, provideextract from the unified register of contracts. In this case, the criteria for evaluating good faith are as follows:

Absence of penalties for at least three completed contracts in the last 12 months.

Over the past 24 months, more than three contracts have been executed, of which no more than 25% of unfulfilled contracts.

Over the past three years, prior to the submission of documentation for participation in the tender, 3 or more contracts were completed, while no penalties were applied to them.

As confirmation of the good faith of the supplier, only those contracts are used, the amount of which is not less than 20% of the contract for which the application is submitted by the tender participant.

Information confirming the good faith intentions of the supplier is attached to the second part of the application for participation in the tender, or is already attached to the draft contract, after the auction has already been won.

The decision of the customer to conclude a contract with a bona fide supplier

Winning the auction does not mean that the customer will sign the draft contract with the winner of the tender. After the last bidding, the customer has access to the second parts of the bids. During established by law deadline is checking the accuracy of the information provided by the winner. Members of the commission of the customer, in the course of studying the documentation of the supplier, check the compliance of the provided data with reality. Based on this, a decision is made to sign a contract with the winner of the state tender. If the data turn out to be contradictory and unreliable, the customer has the right to refuse to sign the contract, which he officially notifies with objective reasons, and enters the tender winner in the register of unscrupulous suppliers.