We present to your attentionmania analytical review“The use of circumstantial evidence in bid rigging cases».

Anti-competitive agreements to increase, reduce or maintain prices at auctions, prohibited by paragraph 2 of part 1 of Article 11 of the Federal Law of July 26, 2006 No. 135-FZ« On protection of competition» (hereinafter referred to as the Law on Protection of Competition) are the most common type of cartels. More than half of all cartel cases are initiated due to bid rigging .

However, in practice there is no uniform standard of proof for such anti-competitive agreements. The most pressing issue in this regard is the use of indirect evidence when there are significant differences in the approaches of the antimonopoly authority and the courts.

1. Approach of the antimonopoly authorities

When considering cases of bid rigging, antimonopoly authorities apply the position developed by the FAS Russia that it is necessary to accept not only direct, but also« the necessary body of circumstantial evidence» . This means that the conclusion about the presence of a prohibited agreement in the actions of the subjects of a prohibited agreement can be made through the result of the alleged agreement, without reference to any direct evidence of the guilt of the persons.

This approach is actively implemented in administrative practice. Thus, from an analysis of the decisions of the antimonopoly authorities, the following facts and circumstances can be identified on which the accusations of a bidding cartel are based:

• absence of proposals from auction participants on the contract price until the auction step has decreased to the minimum ;
• location of bidders at the same address ;
• registration of digital signature key certificates of the accused companies for the same individual ;
• submitting an application from one IP address and/or accounts on which application files were created and modified ;
• conclusion of a supply/subcontract agreement between the winner and one of the bidders ;
• resale of the subject of the auction between participants who submitted bids for the auction, and the refusal of the seller to participate in them ;
• meeting of officials of competing companies on the eve of the auction ;
• failure to reduce the offer price to the level specified in the official’s testimony .

Thus, the antimonopoly authority proceeds from the fact that the fact of collusion in bidding is proven by any factual circumstances confirming that commercial organizations that must compete with each other during bidding acted in the interests of each other or one of the participants.

2. Approach of vessels

Judicial practice is not as uniform as administrative practice. Currently, there is no uniformity among courts on whether bid rigging cases can be resolved solely on the basis of circumstantial evidence. Some courts support the FAS of Russia and accept all evidence from the antimonopoly authorities. Other courts, on the contrary, refuse to confirm the above position of the FAS Russia.

Thus, in the Resolution of the Federal Antimonopoly Service of the Ural District dated August 2, 2011 No. F09-4563/11 in case No. A76-14962/2010, the court indicated that the mere fact of lack of activity among auction participants cannot indicate their collusion.

In the Resolution of the Federal Antimonopoly Service of the Ural District dated March 15, 2013 No. F09-315/13 in case No. A60-23089/2012, the court indicated that the antimonopoly authority did not prove the mutual awareness of auction participants about each other’s actions, their interest in the result of such actions, as well as the disconnection of these actions from objective circumstances that equally affect all economic entities. The court considered the plaintiff’s argument about not reducing the offer price due to unprofitability to be justified.

In the Resolution of the Federal Antimonopoly Service of the Central District dated May 30, 2013 in case No. A64-4201/2012, the court indicated that the behavior of bidders, expressed in the absence of price offers for a contract, in itself is not unconditional evidence of the existence of an agreement between business entities. These arguments were confirmed in the Ruling of the Supreme Arbitration Court of the Russian Federation on the refusal to transfer the case to the Presidium dated September 16, 2013 No. VAS-10923/13.

By the decision of the Supreme Arbitration Court of the Russian Federation dated March 31, 2014 No. VAS-3861/14 in case No. A40-92025/2012, the transfer of the case to the Presidium of the Supreme Arbitration Court of the Russian Federation was refused, since the lower courts correctly concluded that the existence of an anti-competitive agreement between the companies was not proven.

At the same time, some courts accept circumstantial evidence as sufficient, basing the decision on the factual circumstances of the case.

Thus, the Resolution of the FAS of the East Siberian District dated March 25, 2014 in case No. A74-2372/2013 confirmed the legality of the decision of the antimonopoly authority due to the fact that the applicants, before holding auctions and competitions, had previously taken part in other tenders for the right to conclude similar state contracts and were aware of each other's actions.

In the Resolution of the Federal Antimonopoly Service of the Moscow District dated April 22, 2013 in case No. A40-94475/12-149-866, the court considered that the actions of business entities led to the conclusion of a government contract at the highest possible price, and recognized as proven the fact of reaching an oral agreement, although in the case there was no direct evidence of the subjects' guilt.

In the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated April 3, 2013 in case No. A53-21732/2012, the court concluded that the behavior of business entities that incurred costs to participate in the auction, but did not actually take part in it, was illogical. As a result, the court recognized that the actions of the participants were aimed at maintaining the price at the auction, limited competition in setting a competitive price and created a situation that entailed insufficient savings of budgetary funds.

Similar decisions were made by the Resolution of the Federal Antimonopoly Service of the Far Eastern District dated November 5, 2013 No. F03-5209/2013 in case No. A59-5489/2012, and by the Resolution of the Federal Antimonopoly Service of the West Siberian District dated November 6, 2013 in case No. A70-139/2013.

3. Conclusions and recommendations

A general analysis of law enforcement practice shows that it is becoming increasingly difficult to challenge decisions of antimonopoly authorities on bid rigging: courts quite often support the position of the FAS Russia and accept indirect evidence. This is probably due to the nature of the offense itself, because bid rigging directly leads to an increase in the cost of government contracts and, as a consequence, to the ineffective use of budget funds.

One of the most unpleasant situations, which, unfortunately, is quite common today, is collusion between bidders.

Most often, both suppliers and customers participate in collusion and receive certain benefits from cooperation. And organizing a tender in this case is nothing more than a formality.

The types of fraud in tenders depend on the imagination of their participants. New types of collusion among tender participants are constantly emerging. Sometimes everything is thought out so carefully that it is almost impossible to discern whether the results of the competition are legal or not.

And yet, there are certain signs that signal that fraud is taking place in the tender.

Our specialists will help you draw up a complaint to the FAS to protect your interests in the auction.

Signs of collusion between bidders:

rejection of a large number of applications, resulting in only two players being allowed to participate. Two potential contractors are the minimum number of suppliers required for the tender to be considered valid. A more obvious sign of collusion is the admission of two potential executing companies that belong to the same founder. In this case, the likelihood that the customer and, in fact, one supplier are in collusion increases significantly. In any case, before suspecting the worst, it is worth analyzing the reasons for the rejection of applications from other participants. Perhaps the customer had objective grounds for refusal.

rejection of the application of potential performers without explanation. You can always demand from the customer an explanation of the reasons for refusal. If even after this the company does not want to indicate them, then there is probably a conspiracy of participants in this competition.

the reasons for rejecting the application are unfounded. For example, you indicated the cost of your services, but the customer denies access to participation in procurement due to the lack of prices.

excessive demands on suppliers. If the auction documentation for the supply of standard goods or the provision of services that are not particularly technically complex contains technical specifications of several dozen pages, then perhaps the customer expects that most potential contractors will make mistakes. And the “right” supplier who knows the right “answers” ​​will win.

For the same purpose, the list of documents that suppliers must provide to participate in bidding may include licenses, certificates or other documents that are not mandatory for the performance of the proposed work.

This also includes unclear technical specifications.

For example, the description of all the necessary work is drawn up in such a way that it can be difficult for an “uninitiated” performer to understand their real scope. Of course, you can always contact the customer for clarification, and by his further actions you can judge whether this is a conspiracy or whether the organizer did not pay due attention to describing the nature of the work being carried out and the desired services.

too short deadlines for project implementation. Let's say a customer is looking for a contractor for complex installation work, for which he allocates only one day. Naturally, only the organization that started performing this work much earlier can win this tender.

One of the complex types of fraud, which is very difficult to prove, can be called “rotation of applications.” It consists in the fact that several suppliers and, probably, the customer take part in the conspiracy. These performers become winners one by one. In this case, the profit is most often divided either almost equally between the participants in the conspiracy, or in accordance with the size of each company (other remuneration options are also possible).

These are all signs of types of fraud whose goal is the victory of a certain supplier. But there are also types of collusion between participants that pursue another goal - to minimize, increase or maintain the price of the project.

In this case, one can observe the participation of shell companies that are ready to unreasonably sacrifice their profits for the sake of participating in the project.

When fraud is obvious to you, you can choose one of two solutions:

• if you are sure that you can prove the existence of collusion between auction participants, then it is better to file a complaint with the FAS in connection with a violation of 135-FZ “On the Protection of Competition”;
• if it is quite problematic for you to prove fraud, then in this case, simply refuse to participate in this tender or contact the RusTender company and we will give you a clear picture of what is happening. This will help save your time and maintain the health of your nervous system.

OOO ICC"RusTender"

The material is the property of the site. Any use of the article without indicating the source - the site is prohibited in accordance with Article 1259 of the Civil Code of the Russian Federation

06 June 2017

The head of the Pskov OFAS Olga Milonaets spoke about the scandalous road contracts between the companies of the Kukha brothers and the Pskov administration for almost half a billion rubles on the air of the Besedka program on local radio, reported "Pskov news feed". We provide a transcript of this conversation on the pages of the veteran media in full.

Good afternoon, our guest is Olga Milonaets, head of the regional department of the Federal Antimonopoly Service. Olga Viktorovna, good afternoon.

Good afternoon.

Today we will talk about the resonant scandal that is flaring up around city road contracts. Let me remind you that next week the FAS department will consider a case initiated on the grounds of a cartel conspiracy. The focus is on the agreement between the Pskov administration and the companies Technodor and UDS Pskov, the founders of which were entrepreneurs associated with the Pskov authorities. I know that the Pskov OFAS has complaints about this contract. What is the essence of the claims, Olga Viktorovna, please explain to us.

I can’t say that this is a scandal for us. This is our ordinary work by virtue of our powers. We actually opened a case of conspiracy between the government and participants in the so-called “road auctions.” Now information is emerging that these are not exactly road auctions. Our UGH believes that this is an ordinary contract for 400 million rubles for washing curbs, for painting various fences and a little, it seems, for hundreds of millions for sealing cracks. Therefore, the customer says: “It is strange that this attracted the attention of the townspeople, and that our control over these auctions has increased.” He tries to present these auctions as something ordinary. But, nevertheless, we have a deputy’s appeal on this issue, and there is a lot of material in the press.

We have taken control of this situation and are now looking into it. It's not an easy matter. Two auctions, one for 264 million, the second for 183 million. The so-called twin firms won in turn. In one auction, the winner was UDS Pskov, which registered 11 days before the auction, and in the second auction, Technodor LLC, which also registered a few days before the auction.

What are we paying attention to now? I think that not only these two companies will be involved in our case. We have now decided to involve all organizations that participated in this auction. We will look at the behavior of each of the organizations, because the auction is quite a tasty morsel. Wash the curbs, paint the fences, somehow repair the cracks in the asphalt. This is the city center, Zavelichye, and Zapskovye

We want to clarify with the companies that also took part why they did not compete, why they did not make business proposals. How did it happen that the companies took one “step” at a time, and victory was with these two organizations. We want to see at another auction why all the companies were removed, we will definitely see why they were removed. We will look at how security for the contract was filed for 13 and 11 million. We are undergoing a major review of the entire process.

Olga Viktorovna, in April the Pskov OFAS announced the initiation of a case against the organizer and participants of auctions for the maintenance of roads in Pskov. The department says there is evidence. I'd like to hear what the evidence is.

I can say that we had enough evidence to initiate a case. We initiate all cases based on signs of violations, signs of conspiracy. There are a couple of points, we have already outlined them, which may, under certain circumstances, indicate collusion between the companies and the customer. Those same stories that, strangely enough, were organized in 11 days precisely for these purposes, not yet knowing that there would be an auction. Why do the Kuhi brothers register two companies when there are other organizations that could take part in the auction? And here two offices are created specifically to participate in the auction, without having any technology, equipment, or staff. These are the first “bells”. The second is the behavior of campaign participants. The third thing is that all [applications] were withdrawn. In addition, we conducted an on-site inspection and inspected computers in the Pskov city administration together with the prosecutor’s office. Everything that we are currently processing is not yet ready to bring to the surface. But, nevertheless, we are working on certain evidence.

Do I understand correctly that you are charging under Article 16 of the Competition Law? What kind of article is this?

This is a very proof-heavy article. Collusion between government authorities and business entities. It is clear that other security organizations may also have claims behind this economic clause. Therefore, we must understand the situation very carefully. Was there a conspiracy, or was it someone’s negligence, or an accidental coincidence, or a leak of information that we will or will not be able to prove. Quite serious complaints.

In your work experience, are there any precedents when such processes end in court decisions? Are the perpetrators punished? How difficult is this to prove?

Of course, there are such cases in the FAS practice. And in our practice, we have had such cases, as a rule, when, for example, land plots are provided without bidding to a certain structure and when certain documents are found confirming that the parties have agreed on their actions - both the organizers and participants in the bidding exist. I can’t say that there are very many of them. As a rule, such cases are very successful when they are initiated by law enforcement agencies, transferring some kind of operational data. My colleagues do not often, but such things happen.

And what threatens the violators if guilt is proven? And who will be responsible - an individual or a company directly?

As a rule, this is an official of the customer. In this case, it could be the UGC or the city administration, if there are still culprits. For business entities this is a legal entity. These are turnover fines. As a rule, very large. Percentage from 1 to 15 of the company’s turnover. We see that the companies were formed 11 days before participating in the auction; they have no turnover. The maximum fine that these companies can receive is 100 thousand rubles each. But, as a rule, we transfer Article 16 to law enforcement agencies. According to Article 178 of the Criminal Code, the conspiracy of the organizer and the conspiracy of the participants is sanctioned, and there the sanction is up to 5 years in prison.

The worst thing is that a criminal sentence cannot be ruled out.

Moreover, the amounts are decent. Our neighbors in the Novgorod region 4 or 5 years ago did road work at a cost of just over 100 million and the damage to the state was calculated based on the cost of the contract. People received real sentences, both from economic entities and from government bodies.

That is, both the customer - someone from the Pskov administration - and the direct executor - the founding company - could face a criminal sentence?

Yes, this is natural if this composition is proven.

Olga Viktorovna, have you had complaints about the company with the same founders before or is this the first time such complaints have been made?

There were certain complaints, but not about these participants. These founders were not found to have colluded. Naturally, we are now checking these facts, how the companies of these owners have participated in auctions for the last 2-3 years. We are now analyzing all this information.

You just cited the example of our neighbors and voiced one of the cases. I remember the statement of the Federal Antimonopoly Service that the road industry is one of the leaders in cartel agreements. Is this true?

Our central office, naturally, analyzes all the information. I think this is due to the fact that the biggest money in this industry and the biggest damage to the state is established in this market.

Recently, we were contacted by a group of legal entities in respect of which the antimonopoly authorities initiated an inspection to determine whether their actions had signs of coordination in order to obtain an economic effect when participating in tenders - a cartel conspiracy or a cartel agreement.

I will say right away that the case was successfully completed. I will not cite the materials of the inspection, since the case was not brought to court, and the ongoing inspection showed that there were no signs of illegal actions. In addition, there is a privacy policy.

Nevertheless, during the audit, some recommendations were developed based on judicial practice in similar cases.

The antimonopoly authority (FAS) can conduct desk and field inspections, scheduled and unscheduled. Inspections for the presence of cartel agreements are usually carried out suddenly and unscheduled. At the same time, checks for the presence cartel agreement happen suddenly, i.e. without warning (Article 11 of the Law on Protection of Competition).

Video about cartel collusion during tenders and review of judicial practice

Grounds for the FAS inspection

The basis for conducting an inspection may be (Article 25.1 of the Law on Protection of Competition):

• materials received from authorities;
• messages and statements from individuals and legal entities, media reports indicating signs of violation of antimonopoly legislation;
• expiration of the deadline for execution of an order issued as a result of consideration of a case of violation of antimonopoly legislation, or in the exercise of state control over economic concentration;
• instructions of the President of the Russian Federation and the Government of the Russian Federation;
• detection by the antimonopoly authority of signs of violation of antimonopoly legislation.

What is a cartel agreement?

In accordance with Art. 11 of the Law on Protection of Competition, cartel agreements are agreements between competitors in the same market if such an agreement may lead to:

• establishing or maintaining prices, tariffs, discounts, surcharges, surcharges, markups;
• increasing, decreasing or maintaining prices at auctions;
• division of the commodity market according to the territorial principle, the volume of sales or purchase of goods, the range of goods sold or the composition of sellers or buyers (customers);
• reduction or cessation of production of goods;
• refusal to enter into contracts with certain sellers or buyers (customers).

Both “horizontal” and “vertical” agreements are prohibited. In cases provided for by law, vertical agreements may be permissible (Article 12 of the Competition Law).

Other agreements that may restrict competition are prohibited. Coordination of economic activities of economic entities is also prohibited.

The agreement does not recognize actions based on a joint activity agreement and actions as part of dependent groups.

Concerted action

The Competition Law defines what constitutes “concerted actions” of business entities. It is assumed that no formal agreement has been concluded between the subjects, but the actions of the persons are coordinated.

In accordance with Art. 8 of the law, concerted actions of economic entities are the actions of economic entities on the product market in the absence of an agreement, satisfying the totality of the following conditions:

• the result of such actions corresponds to the interests of each of these economic entities;
• the actions are known in advance to each of the economic entities participating in them in connection with the public statement of one of them about the commission of such actions;
• the actions of each of these economic entities are caused by the actions of other economic entities participating in concerted actions, and are not a consequence of circumstances that equally affect all economic entities in the relevant product market.

What does a cartel agreement look like in practice?

In practice, a cartel agreement may look like this:

Two business entities participate in bidding for the right to conclude a contract on the side of the contractor. According to the terms of the auction, the maximum contract price is determined. The first business entity offers to fulfill the contract with a price reduction of 0.5%, the second entity offers to fulfill the contract with a price reduction of 1%. The person who offers the lowest price wins the contract. At the same time, the price was maintained at the highest possible level. As a result, the losing party often becomes a subcontractor of the winning bidder.This scheme can be done many times.

Here's another example:

Applications for participation in the auction are submitted in two stages. At the first stage, a person submits bids with an offer price 70-80% lower than the contract value. After which these persons cannot go through the second stage of submitting documents for participation in the auction. As a result, the winner of the auction is the person who offered the maximum price.

Thus, manipulations occur in order to maintain high prices and fight competitors.

What do the courts pay attention to and what circumstances confirm the existence of a cartel?

Printouts of email messages

Printouts of email messages, information from hard drives and other media, certified by the antimonopoly authority, which received these materials during its inspection, are appropriate evidence in cases of violation of antimonopoly legislation.

A cartel agreement does not have to be in writing

Thus, an agreement within the meaning of antimonopoly legislation can be recognized as an agreement in any form, which may be evidenced by information contained in the documents of business entities, coordinated and targeted actions (inaction) of these entities, consciously making their behavior dependent on the behavior of other market participants, committed by them on a specific product market, falling under the criteria of restricting competition and capable of leading to results determined by the law on the protection of competition.

Submitting bids from one IP address

In the case (No. A20-3765/2015), signs of violation of antimonopoly legislation were identified in the actions of business entities, expressed in collusion at auctions by submitting applications for participation in an electronic auction from one computer, reducing the initial contract price by only 0.5% by each participant auction, therefore maintaining the initial maximum price.

A request was sent to the operator of the electronic platform to provide information about the procurement participants, information about the IP addresses from which the entrance to the electronic platform was carried out. From the information provided by the ETP operator, it follows that the applications came from one IP address from one computer.

Based on the results of the inspection, a decision was made on violation of clause 2, part 1, article 11 of the law on the protection of competition. The violation was expressed in the conclusion of an oral cartel agreement (cartel agreement), the implementation of which led to price maintenance during the electronic auction.

The courts found that the model of behavior at auctions was used by violators more than once; there are more than three hundred cases of joint participation in auctions from one IP address and one computer, according to data obtained from electronic trading platforms.

Thus, the violators acted to maintain the price at the auction.

In the case (A32-42603/2014), it was established that price offers from three formally independent business entities were submitted from the same IP address. Taken together, a conclusion was made about the relationship of these persons when participating in the auction and about the consistency of their actions when participating in the auction.

Identity of application texts. Linguistic expertise

In the case (No. A20-3765/2015), a linguistic examination (research) was carried out to determine the similarity of the first parts of applications for participation in the auction. The study showed that the texts of the applications are identical in content, composition and contain spelling and punctuation features that are not normative or typical for these texts.Thus, it was concluded that the actions of the violators were coordinated.

It is worth noting that the identity of the texts of the initial applications cannot independently indicate signs of a cartel agreement, since the same freely available samples could have been used in preparing the application.

Consistency of actions can be established even in the absence of documentary evidence. Uniformity and synchronicity of actions ( N A01-601/2016)

According to paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2008 No. 30 “On some issues arising in connection with the application of antimonopoly legislation by arbitration courts”, when analyzing the question of whether the actions of business entities on the commodity market are coordinated (Article 8 Law on the Protection of Competition), arbitration courts should take into account the fact that coordination of actions can be established even in the absence of documentary evidence of the existence of an agreement to perform them. The conclusion about the presence of one of the conditions to be established for recognizing actions as coordinated, namely: the commission of such actions was known in advance to each of the economic entities, can be made based on the actual circumstances of their commission.

Consistency of actions (cartel agreement) can be evidenced by the commission of such actions uniformly and synchronously in the absence of objective reasons.

Lack of intention to compete. Simulation of competition

Thus, in one case (No. A01-601/2016), the antimonopoly authority established signs of concluding and participating in a cartel agreement, which led to the refusal of one of the participants to participate in the auction and maintaining the maximum price at the auction in the interests of one of the participants.

To achieve the goal, a model of group behavior was used, which was expressed in the use of dumping offers. In fact, two entities reduced the contract price by more than 50%, which forced one of the participants (not a participant in the cartel) to refuse to participate in the auction. At the same time, bidders who declared a price more than 50% lower than the original price did not submit the necessary package of documents, which led to the victory in the auction of the person (the third participant in the cartel conspiracy) who declared the maximum price in the absence of real competition.

At the same time, nothing prevented the person who offered the price of the contract to be more than 50% lower than the original one from signing the contract based on the results of the auction, however, the specified participant filed a complaint against the actions of the customer’s auction commission for the unreasonable recognition of his application as conforming, which in itself is a fact indicating that the purpose of participation in the auction for this participant was not to win and conclude a contract, but to reduce the contract price to the level of unprofitability of performing work for bona fide participants.

In another case (A74-12668/2016) two business entities implemented a unified strategy of behavior aimed at maintaining prices at auctions when the winner was predetermined between them. Participation in the auction was aimed at creating the appearance of competition. As a result of this strategy of behavior with minimal risks, these business entities receive a guaranteed maximum benefit that corresponds to the interests of each of them.

Liability for violation of antimonopoly legislation

Art. 51 competition laws

... a person whose actions (inaction) in the manner prescribed by law are recognized as monopolistic activity or unfair competition and are unacceptable in accordance with antimonopoly legislation, by order of the antimonopoly authority, is obliged to transfer to the federal budget the income received from such actions (inaction). In case of failure to comply with this requirement, income received from monopolistic activities or unfair competition is subject to recovery into the federal budget at the request of the antimonopoly authority. A person who has been issued an order to transfer to the federal budget income received from monopolistic activities or unfair competition cannot be held administratively liable for violating the antimonopoly legislation in respect of which this order was issued, if this order is executed.

Art. 14.32

2. The conclusion by an economic entity of an agreement that is unacceptable in accordance with the antimonopoly legislation of the Russian Federation, if such an agreement leads or may lead to an increase, decrease or maintenance of prices at auction, or the conclusion of an agreement that is unacceptable in accordance with the antimonopoly legislation of the Russian Federation between the organizers of the auction and (or) customers with participants in these tenders, if such an agreement has the purpose or leads or may lead to restriction of competition and (or) the creation of preferential conditions for any participants, or participation in them - entails the imposition of an administrative fine on officials in the amount of twenty thousand up to fifty thousand rubles or disqualification for up to three years; for legal entities - from one tenth to one second of the initial cost of the auction item, but not more than one twenty-fifth of the total amount of the offender’s proceeds from the sale of all goods (works, services) and not less than one hundred thousand rubles.

5. Coordination of economic activities of economic entities, which is unacceptable in accordance with the antimonopoly legislation of the Russian Federation, -entails the imposition of an administrative fine on citizens in the amount of forty thousand to fifty thousand rubles; for officials - from forty thousand to fifty thousand rubles or disqualification for up to three years; for legal entities - from one million to five million rubles.

The arbitration court heard a case (No. A20-3765/2015), where the FAS held a legal entity administratively liable under Art. 14.32 of the Code of Administrative Offenses of the Russian Federation in the form of a fine in the amount of 23,626,025 rubles.

Art. 14.33Code of Administrative Offenses (Unfair competition)

1. Unfair competition, if these actions do not contain a criminal offense, except for the cases provided for in Article 14.3 of this Code and Part 2 of this article, shall entail the imposition of an administrative fine on officials in the amount of twelve thousand to twenty thousand rubles; for legal entities - from one hundred thousand to five hundred thousand rubles.
2. Unfair competition, expressed in the introduction into circulation of goods with the illegal use of the results of intellectual activity and equivalent means of individualization of a legal entity, means of individualization of products, works, services - entails the imposition of an administrative fine on officials in the amount of twenty thousand rubles or disqualification for up to three years; for legal entities - from one hundredth to fifteen hundredths of the amount of the offender’s proceeds from the sale of goods (work, services) on the market in which the offense was committed, but not less than one hundred thousand rubles.

Art. 19.5Code of Administrative Offenses

The article provides for liability for failure to comply with the legal requirements of the antimonopoly authority.

Art. 19.8Code of Administrative Offenses

1. Failure to submit or untimely submission to the federal antimonopoly body, its territorial body of information (information) provided for by the antimonopoly legislation of the Russian Federation, including failure to provide information (information) at the request of these bodies, except for the cases provided for in parts 3, 4 and 7 of this article, and equally, submission to the federal antimonopoly body or its territorial body of knowingly false information (information), except for the cases provided for in Part 8 of this article, shall entail the imposition of an administrative fine.

Art. 178 of the Criminal Code of the Russian Federation (Restriction of competition)

1. Restriction of competition by concluding a competition-restricting agreement (cartel) between competing economic entities, prohibited in accordance with the antimonopoly legislation of the Russian Federation, if this act caused large damage to citizens (more than 10 million), organizations or the state or resulted in the extraction of income on a large scale ( more than 50 million), entails liability.

That's all! I hope that the article was useful to you!

08/30/2013 15:08, Kurgan region, website:

Bidding is a traditional institution of civil law, reflecting a special procedural aspect of concluding a contract. However, it should be noted that the institution of bidding these days has acquired an intersectoral character: with certain features it is used not only in civil law, but also beyond it.

Bidding as an intersectoral phenomenon has two constitutive features that are also characteristic of bidding as a civil legal institution: equality of bidders and their competitiveness with each other. At the same time, all relations arising in the process of organizing and conducting auctions remain in the field of civil law regulation, regardless of in what area of ​​public relations, as well as for what purposes the auctions are organized and held.

Competitiveness is a constitutive feature of any bidding, objectively determining its essence; in the absence of competitiveness, bidding loses all meaning. At the same time, competitiveness in itself may be inherent not only in bidding, but also in other methods of concluding a contract. It is proposed to call such methods “competitive procedures for concluding a contract,” the meaning of which boils down to the existence of several alternative counterparties who compete (compete) with each other for the right to become a party (counterparty) to the same contract.

The sign of competition is that the winner of the auction will be the participant who offers the most favorable price for purchasing the property or the best conditions, therefore each participant strives for his offer to be the most profitable.

Competitiveness as a constitutive feature of bidding finds direct expression in individual elements of the legal regime established for bidding. First of all, it is necessary to indicate the quantitative composition of participants. Bidding with one participant cannot be considered valid (there must be at least two participants). It should also be noted that genuine competition has as a necessary prerequisite the equality of conditions under which competition occurs. Competitiveness, as applied to bidding, presupposes competition on equal terms.

Bidding should be positioned as a special case of competition when concluding a contract; its peculiarity is the tightening of procedural requirements, such as: notification of the bidding, advance determination of the conditions for participation in them, including the possibility of securing bids, and the strictly mandatory conclusion of an agreement based on the results of the bidding with the winner.

In progress there are no contractual ties for organizing and conducting tenders, the construction of an “implied contract for tendering”, accepted by modern legal science, is untenable. Notice of an upcoming auction is not a public offer, but a unilateral transaction by the organizer, the consequence of which is an invitation to make offers, which are the applications of applicants for participation in the auction. The notice exists on its own and does not require any acceptance.

Contractual relations can arise between well-defined, specific persons, but at the time of filing applications for participation in the auction, these persons are not defined in any way: applicants (applicants) will have to go through the procedure for admission to participation in the auction, only as a result of which a circle of bidders will be formed.

There is a complete absence of mutual rights and obligations at the auction. The organizer can change the terms of the auction or cancel them altogether (the consequences of such behavior are different, but bidders have no right to resist it), bidders can change or withdraw their bids at any time, as well as take a completely formal, passive participation in the auction (for example without making bids in a step-by-step auction). In addition, if we consider the notice of auction as a public offer, and the application for participation in it as acceptance, then the latter should be devoid of independent legal content, which, in turn, is concentrated exclusively in the notice. It is obvious that the bidding mechanism actually functions differently: bidders’ applications must have independent and specific content, i.e. act as offers in relation to the contract, in order to identify the conditions and conclusion of which tenders are held.

Under the current legislation, there is no place at auctions for agreements allowed in international practice between participants in upcoming auctions (on the creation of consortia and similar contractual associations). The reason for this is not only the requirements of paragraph 4 of Art. 447 of the Civil Code of the Russian Federation stating that the person who wins the auction is an individual or legal entity, as well as the Russian Federation, constituent entities of the Russian Federation and municipalities. Bidding is a civil legal relationship, the participants of which are citizens and legal entities (Clause 1, Article 2 of the Civil Code of the Russian Federation), but not contractual associations.

Due to the increasing detail of procurement and antitrust legislation, unscrupulous customers and bidders are inventing increasingly veiled ways to manipulate the bidding procedure, the detection of which becomes even more difficult for both other participants and regulatory government agencies.

Trading manipulation schemes

Schemes for manipulating bids during tenders often include mechanisms for the proportional division and distribution among participants in the conspiracy of additional profits received by increasing the final price of the contract. For example, competitors who agree not to submit bids or submit a known losing bid may become subcontractors or suppliers by entering into corresponding agreements with the successful bidder to share the benefits of the illegally obtained high contract price. However, long-term bid manipulation agreements may involve much more sophisticated methods of distributing contract wins, monitoring, and distributing the benefits of bid fraud over months or years. Manipulation of entries in competitions may also include cash payments by the winning bidder to one or more colluders. This so-called offset payment is also sometimes associated with firms submitting "cover" bids (with higher prices).

Individuals and legal entities implement various schemes for manipulating applications during competitions in a variety of ways; as a rule, they use one or more common strategies. These techniques are not mutually exclusive. For example, cover submissions can be used in conjunction with a competition winner rotation scheme. These strategies, in turn, may manifest as patterns that procurement officials can recognize, and familiarity with them may help expose bid manipulation schemes.

Submitting cover applications. Cover bids (also referred to as additional, auxiliary, formal or symbolic) are the most common way to implement bid manipulation schemes in competitions. It is implemented as follows: individuals or legal entities agree to submit bids subject to at least one of the following conditions: (1) a competitor agrees to submit a bid at a price higher than the bid price of the bidder who is to be the winning bidder, (2) the competitor submits a bid with a price that is already known to be too high to be accepted, or (3) a competitor submits a bid containing special conditions that are known in advance to be unacceptable to the buyer. Cover bids are intended to create the appearance of real competition.

- Withdrawal of applications. Withdrawal schemes involve agreements between competitors in which one or more companies agree to refrain from submitting a bid or withdraw a previously submitted bid to ensure acceptance of the bid of the firm selected as the winning bidder. In essence, withdrawal of applications means that the company's application does not participate in the final consideration by the competition organizers.

- Rotation of applications. In bid rotation schemes, colluding firms continue to submit bids, but they agree to take turns winning the competition (i.e., taking turns to become the qualified lowest bidder). Methods for implementing bid rotation agreements may vary. For example, participants in a conspiracy may decide to distribute the sums of money from a certain group of contracts among all firms approximately equally or in accordance with the size of each company.

- Market division. Competitors share the market and agree not to compete for certain customers or in certain geographic areas. For example, competing firms may allocate specific customers or define groups of customers among different firms so that competitors do not bid (or only submit cover bids) for contracts offered by a particular type of potential customer assigned to a particular firm. The competitor, in turn, will not apply for a competition organized by a group of clients assigned to other firms participating in the agreement.

The possibility of implementing an agreement based on collusion is influenced by industry and product characteristics of the market. Such characteristics may tend to support firms' efforts to manipulate bids. The indicators of competition fraud discussed below may become more apparent in the presence of certain enabling factors. While there are a variety of industry or product characteristics that contribute to collusion, companies do not need all of these factors to be present to successfully manipulate bids.

The main indicators that help reduce the likelihood of concluding an agreement on bid manipulation are:

Large number of bidders. Manipulation of bids in competitive bidding is more likely in cases where a small number of companies are suppliers of a product or service. The smaller the number of sellers, the easier it is for them to reach an agreement on how they will manipulate bids.

Low barriers to entry into the product market. If few firms have appeared or have a chance to appear in a market over a certain short-term period, because entering this market is expensive, difficult or time-consuming, firms operating in this market are protected from competitive pressure from potential newcomers. This security barrier facilitates bid manipulation efforts.

Low demand growth rates. Significant changes in supply or demand conditions will typically destabilize existing bid manipulation agreements. Constant, predictable demand tends to increase the risk of collusion.

Cyclical fluctuations in demand. The absence of collusion in the wave of a cyclical upturn (in a state of anticipation of a downturn) entails for the participant an increase in one-time profits compared to losses in the near future (under the influence of possible profits decreasing during a downturn).

Differences in costs between market participants (traders). Lower costs in the production of goods/provision of services lead to higher profits outside the agreement and do not entail the participant’s interest in concluding an agreement (no interest in support).

Lack of structural connections. Low levels of cross-ownership and participation reduce the likelihood of collusion.

Availability of many substitute goods/services. In the event of a shortage or unavailability of good alternative goods or services that can replace the product or service being purchased, individuals or entities wishing to resort to bid manipulation feel safer knowing that buyers have few good alternatives if they eat at all, and thus their efforts to raise prices have a greater chance of success

The existence of cartels leads to an artificial rise in prices and a lack of new, better goods. Such agreements lead to the fact that participating enterprises lose incentives to introduce innovations, and companies participating in the cartel, as a rule, try to prevent new players from entering the market by raising barriers to entry into the market.

For cartel conspiracy (the most dangerous economic crime), administrative liability is provided with punishment in the form of a turnover fine in the amount of up to 15% of the company’s annual turnover, and criminal liability, with punishment under Article 178 of the Criminal Code of the Russian Federation in the form of a fine from 300 thousand to 1 million rubles , and for especially dangerous cartels the prison term is from 3 to 7 years in prison.

In order to identify competitive fraudsters, you need to know certain signs of unfairly conducted auctions: a small number of participants, only a symbolic reduction in the offer price, incomplete attendance at the auction, etc.

These main features can be established by free access to the all-Russian official website for placing orders for the supply of goods, performance of work, provision of services for state and municipal needs www.zakupki.gov.ru, where all actions of companies participating in placing an order according to the so-called “cutting” » are visible in the public domain. In bid rigging, competitors agree on the terms of a bid to maximize their profits and eliminate competition.

Apply in case of detection of signs of violation of antimonopoly legislation in the form of collusion at auctions, you can contact the Kurgan OFAS Russia at the address: Kurgan, st. M. Gorky, 40, room 215, tel. 45-39-55, f. 46-39-85, e-mail: [email protected]

The requirements for filling out an application are established by parts 1 and 2 of Article 44 of the Law on Protection of Competition.

If you do not have sufficient information necessary to write an application to the antimonopoly authority, you have the right to send the available materials, which will be considered by the Kurgan OFAS Russia on your own initiative, since by virtue of Part 1 of Article 39 of the Law on Protection of Competition, the basis for initiating a case a violation of the antimonopoly law is not only a statement by a legal entity or individual indicating signs of a violation of the antimonopoly law, but also the direct detection by the antimonopoly authority of signs of a violation of the antimonopoly law.