If the price during the auction decreases by more than 25 percent, the participant who has become the winner is obliged to confirm his good faith. This is called anti-dumping measures. In the article, read about how to prove good faith under 44-FZ.
Now the competition in the market is very strong, and in the state order market even more. Bidders fight at the auction to the last. And sometimes they lower the price to a minimum. At the same time, customers begin to doubt that the product or service they purchase can even receive.
Therefore, in 44-FZ there is a requirement for such tenderers. If during the auction the price decreases by more than 25% of the NMTsK, anti-dumping measures are applied to such participants. Or in a simple way - the participant must prove his good faith in the tender. Moreover, not only is the participant absent from the RNP.
When to prove your good faith in a tender under 44-FZ
In tenders where participants reduce the price by more than 25%, they must prove their good faith. As soon as the auction is over, and the customer has determined the winner of the tender, the countdown of 10 days begins for the preparation and signing of the contract. Before signing the contract by the participant, he must provide the customer with proof of good faith.
All changes in procurement for bidders 2019-2020
During the webinar you will learn:
Which changes for tenderers have already entered into force by the end of 2019, and which will come into effect from 2020;
What are the changes for the participants in securing the application and the contract;
What is the provision of guarantee obligations;
How and why to register with the ERUZ;
What has changed in advance payments under government contracts;
What you need to know about the plans of customers for 2020.
Moreover, if the participant - the winner of the tender does not provide the customer with his good faith, he can be included in the RNP. Therefore, it is worthwhile to carefully approach this issue, monitor the deadlines and prepare a letter to the customer in time and send the contract security.
How to prove your integrity
In case of anti-dumping measures, the tenderer must send to the customer the contract security in 1.5 times more than it was originally indicated. And also provide documents that will confirm that the participant has previously executed contracts without fines and penalties. At what contracts should be for the last 3 years. And the total amount of contracts should be 20% more than the NMTsK of this tender.
But there is a small indulgence for the participants, in terms of the subject of contracts. Those contracts that the participant will provide may be for different subjects of contracts. The most important thing is that at the time of application they have already been executed and in the EIS they were in the status of “execution completed”.
It will be important that if the advance payment was indicated in the draft contract, then the security will be paid not 1.5 times more than the amount of the NMTsK, but will be the amount of the advance payment. At the same time, the advance payment itself will not be paid by the customer during anti-dumping. This condition should be written in the draft contract.
How to prove your integrity in order to keep more money on account
If a tender participant dumps, he is obliged to provide a contract security increased by one and a half times - this is a protective anti-dumping measure for customers. But if the contract price is below 15 million rubles. the applicant has the right to deposit standard security in the amount according to the notice and additionally confirm his good faith.
Read about how participants can prove good faith to save on collateral and keep more free money in their accounts, and what conditions must be met in the contract register for the customer to accept them.
How is a confirmation of good faith issued?
The form of confirmation of good faith is not established either by 44-FZ or by-laws. The tenderer can provide information in the form of a declaration, a letter of guarantee or a simple letter of notification. The main thing is that such a form be signed by the head of the organization with a seal.
All information that the tenderer provides to the customer is in public access in the EIS. The bidder just needs to collect everything on one sheet.
What to include in a letter of confirmation of good faith
It is not important how the tender participant will draw up this letter. It is important what data he will indicate in his letter. It is necessary to indicate in the letter of good faith registry numbers contracts completed within 3 years. Information about customers with whom contracts were concluded (their names and TIN). The prices of each of the contracts, and perhaps it is better to even sum them up and show by this that the total amount is 20% more than the NMTsK of this tender. It is also necessary to indicate the subjects of executed contracts and the terms of conclusion and execution.
Important
The information must match the information that is in the EIS contract register. If the customer sees a discrepancy in the information, then he recognizes the tenderer as having evaded the conclusion of the contract and sends it to the RNP.
All information is best provided in tabular form. It is not worth sending copies of the contracts of acts, consignment notes, and payments to the customer. The customer himself will check this information in the EIS.
What are the exceptions to the rules
An exception to the rules in anti-dumping measures will be tenders for the provision of an ambulance medical care, drugs, fuel and food. In such tenders, the participant with a decrease of more than 25% will need to provide letter of guarantee from the manufacturer or some other documents that can confirm the execution of the contract at the price offered by the participant.
Also, anti-dumping is not applied when there is no security for the performance of the contract in the terms of the tender.
1. If, during a tender or auction, the initial (maximum) contract price is more than fifteen million rubles and the procurement participant with whom the contract is concluded, the contract price is proposed, which is twenty-five percent or more lower than the initial (maximum) contract price, or the sum of the prices of units of goods, work, services, which is twenty-five percent or more lower than the initial sum of the prices of the indicated units, the contract is concluded only after such a participant provides a security for the performance of the contract in an amount exceeding one and a half times the size of the security for the performance of the contract specified in the documentation on the holding competition or auction, but not less than in the amount of the advance payment (if the contract provides for the payment of an advance payment).
2. If, during a tender or auction, the initial (maximum) contract price is fifteen million rubles or less, and the procurement participant with whom the contract is concluded, the contract price is proposed, which is twenty-five percent or more lower than the initial (maximum) contract price, or the sum of the prices of units of goods, work, services, which is twenty-five percent or more lower than the initial sum of the prices of the indicated units, the contract is concluded only after such a participant provides security for the performance of the contract in the amount specified in part 1 of this article, or information confirming the good faith of such a participant in accordance with paragraph 3 of this article, with the simultaneous provision by such a participant of the contract performance security in the amount of the contract performance security specified in the procurement documentation.
(see text in previous edition)
3. Information confirming the good faith of a procurement participant includes information contained in the register of contracts concluded by customers and confirming the execution by such participant within three years prior to the date of filing an application for participation in the procurement of three contracts (taking into account succession) executed without applying to to such participant of forfeits (fines, penalties). At the same time, the price of one of such contracts must be at least twenty percent of the initial (maximum) contract price specified in the notice of procurement and procurement documentation.
(see text in previous edition)
4. In case of open competition, a tender with limited participation, a two-stage tender, a closed tender, a closed tender with limited participation, a closed two-stage tender, the information provided for by paragraph 3 of this article is provided by the procurement participant as part of an application for participation in an open tender, a tender with limited participation, a two-stage tender, a closed competition, closed competition with limited participation, closed two-stage competition. The Procurement Commission rejects such an application if this information is found to be unreliable. The decision to reject such an application is recorded in the protocol for determining the supplier (contractor, performer), indicating the reasons for rejecting such an application, is brought to the attention of the procurement participant who sent the application no later than the working day following the day of signing the specified protocol. If the procurement participant, in the case provided for in paragraph 2 of this article, does not provide information confirming his good faith in accordance with with paragraph 3 of this article, a contract with this participant is concluded after they provide a contract performance security in the amount of one and a half times the amount of the contract performance security specified in the procurement documentation.
(see text in previous edition)
5. In the event of an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an auction, the information provided for in paragraph 3 of this article shall be provided by the procurement participant when sending the signed draft contract to the customer. If such participant, recognized as the winner of a tender or auction, fails to this requirement or recognition by the procurement commission of the information provided for in paragraph 3 of this article as unreliable, the 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 drawn up in a protocol, which is placed by the customer in a single information system no later than the working day following the day of signing the said protocol.
(see text in previous edition)
6. The security specified in parts 1 and this article shall be provided by the procurement participant with whom the contract is concluded before its conclusion. A procurement participant who has not fulfilled this requirement is recognized as having evaded the conclusion of the contract. In this case, the evasion of the procurement participant from concluding a contract is documented in a protocol that is posted in a single information system and brought to the attention of all procurement participants no later than the working day following the day of signing the specified protocol.
7. When holding tenders for the purpose of concluding contracts for the performance of research, development or technological work, the provision of consulting services, the customer has the right to establish in tender documentation different values of the significance of the criteria for evaluating bids for the cases when a tender participant submits an bid containing a proposal for the contract price, which:
1) up to twenty-five percent below the initial (maximum) contract price;
2) twenty-five percent or more below the initial (maximum) contract price.
8. In the cases provided for by clause 2 of part 7 of this article, the value of the significance of such a criterion as the contract price is set equal to ten percent of the sum of the significance values of all criteria for evaluating bids.
(see text in previous edition)
9. If the subject of the contract, for the conclusion of which a tender or auction is held, is the supply of goods necessary for normal life support (food, means for providing ambulance, including emergency specialized, medical care in an emergency or urgent form, medicines, fuel), the procurement participant who offered the price of the contract, the amount of unit prices of goods twenty-five percent or more lower than the initial (maximum) price of the contract, the initial amount of unit prices, along with the requirements provided for in this article, is obliged to provide the customer with a rationale for the proposed contract price, the amount of unit prices goods, which may include a letter of guarantee from the manufacturer indicating the price and quantity of the goods supplied (except for the case when the number of goods supplied cannot be determined), documents confirming the availability of goods from the procurement participant, other documents and calculations confirming the participant’s ability to purchases to deliver the goods at the offered price, the sum of the prices of the goods units.
(see text in previous edition)
1) by the procurement participant who offered the price of the contract, the sum of unit prices of goods is twenty-five percent or more lower than the initial (maximum) price of the contract, the initial sum of unit prices of goods, as part of an application for participation in an open tender, a tender with limited participation, a two-stage tender, closed competition, closed competition with limited participation, closed two-stage competition. If such a participant fails to comply with this requirement or if the procurement commission recognizes the proposed contract prices, the sum of the unit prices of goods as unreasonable, the application of such a participant is rejected. Specified solution 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;
(see text in previous edition)
2) by the procurement participant with whom the contract is concluded, when sending a signed draft contract to the customer during an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an auction. If such a participant fails to comply with this requirement, he is recognized as having evaded the conclusion of the contract. If the procurement commission recognizes the proposed contract price, the sum of unit prices of goods as unreasonable, the contract with such a participant is not concluded and the right to conclude a contract passes to the procurement participant who offered the same as the winner of this tender or auction, the contract price, the sum of unit prices of goods or whose contract price offer contains the best conditions for the price of the contract, following the conditions offered by the winner of this tender or auction. In these cases, the decision of the procurement commission is drawn up in a protocol, which is placed in a single information system and brought to the attention of all procurement participants no later than the working day following the day of signing the specified protocol.
In part 3 of Art. 37 federal law dated 05.04.2013 N 44-FZ "On 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 the application of penalties (fines, penalties) to such a participant. The supplier declares contracts in confirmation of their good faith, which were not performed 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?
By 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 a security for the performance of the contract in the prescribed amount or information confirming the good faith of such a 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 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 it is possible to consider 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, to 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 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 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 a contract, obligations are considered to be 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 the execution by agreement of the parties (as due to the fact that the customer lost the need for the volume 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. 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 under such contracts in a single information system (hereinafter - UIS ) there were no acts of work performed in full; the work performed under these contracts was not fully paid, and in the UIS these contracts have the status "Execution terminated" (see a similar conclusion in the decision of the OFAS for the Murmansk region dated September 26, 2016 N 06-09 / RNP-51-64).
However, we note that of the general norms civil law on the performance of obligations and the performance of the contract does not follow that the obligations of the 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, it is about confirming the good faith of the procurement participant, while 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 The Civil Code of the Russian Federation conscientiousness 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 of the Supreme Court of the Russian Federation of June 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, since 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 in subsequent purchases can 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 meeting 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 fulfillment 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, we have not been able to find any case law 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.
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 confidence in suppliers emerging from the competition: they will disrupt the deal, deliver low-quality goods, violate the deadlines ... In a situation where most contracts are concluded “at the 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 the 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) an image loss, but a very real one 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), Register formed in accordance with the procedure established by Law No. 44-FZ, and 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 meet the established requirements for procurement participants or has provided false information about its 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, then the amount of the security for the performance of the contract cannot be less than the advance, even if the amount of the advance 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 what is 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 executed 4 or more contracts within 2 years prior to 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 an electronic auction, information about the good faith of the supplier 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, medical aid, medicines, 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 persons" in Russian legislation while 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"
The good faith of a procurement participant under 44-FZ is one of the anti-dumping measures in the contract system. The participant shows information from the register of contracts about previously fulfilled obligations in order not to increase the security. We will figure out how to confirm good faith, as well as provide a sample confirmation of good faith for download.
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 NMTsK, anti-dumping measures are used. This is done in order to prevent the restriction of competition due to excessive underestimation of the cost of products, as well as to protect customers and, as a result, end consumers from poor-quality purchase results.
If at the same time the initial tender price is less than 15 million rubles. (inclusive), then the supplier has a choice. He can provide the customer with the contract security in 1.5 times the amount or the usual security plus documents showing his business reputation in the contract system.
From 01/01/2019 with an initial maximum contract price of up to 15 million rubles. the interpretation of Article 37 of the 44-FZ has ceased to be ambiguous. According to the new rules, such measures are applied as follows: it is either the enforcement of the contract in one and a half times, or the enforcement of its execution in the “standard” one-time amount, together with information about good faith.
Only "good faith" without money or a bank guarantee, as a guarantee for the execution of a government contract, is no longer enough!
On July 1, 2018, amendments to 44-FZ came into force. In this regard, it is specified that anti-dumping measures will be effective when:
- open competition, competition with limited participation;
They also apply to new e-procurements:
- open competition in electronic form;
- competition with limited participation in electronic form;
- two-stage competition in electronic form.
In this case, the procedure for providing it will be similar electronic auction according to the current legislation. That is, information about good faith will be provided by the winner when sending the signed draft contract to the customer.
How to confirm the integrity of the supplier according to 44-FZ
The necessary information is contained in the EIS, 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 of "Execution completed" or "Execution terminated".
Information confirming the good faith of the procurement participant 44-FZ may be as follows (optional):
- Three or more completed contracts within one year prior to the application date. No penalties.
- Four or more completed contracts within two years prior to the application date. 75% of which without penalties.
- Three or more completed contracts within three years prior to the application date. No penalties.
It is important to note 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.
