1. If, during a competition or auction, the initial (maximum) contract price is more than fifteen million rubles and the procurement participant with whom the contract is concluded offers a contract price that is twenty-five percent or more lower than the initial (maximum) contract price, or offers the sum of prices of units of goods, work, services, which is twenty-five percent or more lower than the initial sum of prices of these units, the contract is concluded only after such participant provides security for the performance of the contract in an amount exceeding one and a half times the amount of security for the performance of the contract specified in the documentation for the contract competition or auction, but not less than the amount of the advance (if the contract provides for the payment of an advance).
2. If, during a competition or auction, the initial (maximum) contract price is fifteen million rubles or less and the procurement participant with whom the contract is concluded offers a contract price that is twenty-five percent or more lower than the initial (maximum) contract price, or offers the sum of prices of units of goods, work, services, which is twenty-five percent or more lower than the initial sum of prices of these units, the contract is concluded only after such 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 participant in accordance with Part 3 of this article, with the simultaneous provision by such participant of contract performance security in the amount of contract performance security specified in the procurement documentation.
(see text in the previous edition)
3. Information confirming the integrity 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 before the date of filing an application for participation in the procurement of three contracts (taking into account succession) executed without applying to such participant is subject to penalties (fines, penalties). In this case, the price of one of such contracts must be no less than twenty percent of the initial (maximum) contract price specified in the notice of procurement and procurement documentation.
(see text in the previous edition)
4. In the case of an open tender, 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 in Part 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, two-stage competition, 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 the rejection of such an application, and is brought to the attention of the procurement participant who sent the application no later than the working day following the day of signing the specified protocol. If the procurement participant, in the case provided for in Part 2 of this article, does not provide information confirming his good faith in accordance with with part 3 of this article, a contract with this participant is concluded after he provides contract performance security in an amount one and a half times greater than the amount of contract performance security specified in the procurement documentation.
(see text in the previous edition)
5. In the event of an open competition 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 Part 3 of this article is provided by the procurement participant when sending a signed draft contract to the customer. If such participant, recognized as the winner of the competition or auction, fails to comply, this requirement or the procurement commission recognizes the information provided for in Part 3 of this article as unreliable, a contract is not concluded with such a participant and he is recognized as having evaded concluding a contract. In this case, the decision of the procurement commission is formalized in a protocol, which is posted by the customer in a single information system no later than the working day following the day of signing the specified protocol.
(see text in the previous edition)
6. The security specified in parts 1 and this article is provided by the procurement participant with whom the contract is concluded before its conclusion. A procurement participant who fails to comply with this requirement is deemed to have evaded concluding the contract. In this case, the procurement participant’s evasion from concluding a contract is documented in a protocol, which is posted in a unified information system and brought to the attention of all procurement participants no later than the working day following the day of signing the specified protocol.
7. When holding competitions for the purpose of concluding contracts for the implementation of research, development or technological work, rendering consulting services The customer has the right to establish in the tender documentation different values of the significance of the application evaluation criteria for cases where a tender participant submits an application containing a proposal for a contract price that:
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 in paragraph 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 applications.
(see text in the previous edition)
9. If the subject of the contract for the conclusion of which a competition or auction is held is the supply of goods necessary for normal life support (food, means for providing emergency services, including specialized emergency services, medical care in an emergency or urgent manner, medicines, fuel), the procurement participant who proposed the contract price, the sum of prices of goods units is twenty-five percent or more lower than the initial (maximum) contract price, the initial sum of prices of goods units, along with the requirements provided for in this article, is obliged to provide the customer with a justification for the proposed contract price , the sum of prices of units of goods, which may include letter of guarantee from the manufacturer indicating the price and quantity of the goods supplied (except if the quantity of goods supplied cannot be determined), documents confirming the availability of goods from the procurement participant, other documents and calculations confirming the ability of the procurement participant to supply the goods at the proposed price, the sum of unit prices goods.
(see text in the previous edition)
1) a procurement participant who proposed a contract price, the sum of prices of goods units is twenty-five percent or more lower than the initial (maximum) contract price, the initial sum of prices of goods units, 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 the procurement commission recognizes the proposed contract price or the sum of unit prices of goods as unreasonable, the application of such participant is rejected. The specified decision of the procurement commission is recorded in the protocol of consideration and evaluation of applications for participation in the competition or consideration of a single application for participation in the competition;
(see text in the 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, or an auction. If such a participant fails to comply with this requirement, he is recognized as having evaded concluding the contract. If the procurement commission recognizes the proposed contract price, the sum of prices of units of goods as unreasonable, the contract is not concluded with such a participant and the right to conclude a contract passes to the procurement participant who offered the same contract price, the sum of prices of units of goods as the winner of this competition or auction or a contract price proposal which contains best conditions at the contract price, following the conditions proposed by the winner of this competition or auction. In these cases, the decision of the procurement commission is formalized in a protocol, which is posted in a unified 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.
Suppliers dumped, dumped,
no they dumped 1
Unlike the legislation on contract system 2, the law on public-corporate procurement 3 do not provide for any special measures aimed at protecting the interests of customers and procurement participants from.
Dumping (from the English dumping - dumping) refers to cases when products are offered at prices below their normal cost (this is how dumping is defined in the General Agreement on Tariffs and Trade (GATT), which underlies the activities of the World Trade Organization. trade organization(WTO).
The reasons for carrying out anti-dumping measures are obvious: the customer tries to protect himself as much as possible from the risks of failure to fulfill obligations by supplier 4 (in terms of timing and quality, as well as the need for re-purchase).
Of course, there are situations when some can actually provide a significant reduction in price compared to most competitors due to innovative high-tech solutions, labor mechanization, efficient production, purchasing wholesale quantities of materials on exclusive terms, having our own resource base, logistics, having full-fledged “equivalents” of goods of a different price category, etc.
But, unfortunately, they are rather an exception to the rule, and such opportunities are usually identified and taken into account by the customer during procurement.
1 Purchasing tongue twister.
2 Federal Law of 04/05/2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”, hereinafter referred to as the Law on the Contract System, Law No. 44-FZ.
3 Federal Law of July 18, 2011 N 223-FZ “On the procurement of goods, works, services certain types legal entities".
4 In the following, by supplier we also mean (depending on the subject of the contract) the performer and the contractor.
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There is no smoke without fire...
It should be noted that participants may have many reasons for dumping, and not all of them cause damage to the customer. These include, for example:
the initial (maximum) price significantly exceeds the current market price (a consequence of the customer’s error);
partial compensation for downtime of the resources available to the supplier (personnel, machinery, equipment, premises, etc.);
urgent need for financial resources, the need to obtain funds to repay loans ( wages etc.) in the absence of other orders;
implementation of marketing activities (“sales”) and winning “prestige contracts” (for further use of information about the execution of the contract of a status customer for marketing purposes);
development of formal qualifications in order to gain access to participation in the competition for more profitable orders (when choosing a supplier for the execution of which, work experience requirements are established or such experience is one of the criteria for evaluating applications);
the need to eliminate leftovers (seasonal products);
the need to quickly reduce warehouse stocks, etc.
Still, more often than not, the goals of the dumping participants are much more prosaic and sadder for the customer, including:
struggle for the market (for example, ousting other 5 dealers);
disruption of the procurement procedure (including as a formal basis for the customer’s transition to a less competitive procedure, provided for such a case in the procurement regulations, for example, procurement from sole supplier based on failed auctions 6);
gaining experience by the staff (the customer is the “guinea pig” and the “test site”);
sale of outdated, expired, refurbished and counterfeit 7 products;
manipulating the result of a competitive procedure, including by reducing the interest of bona fide applicants in further participation in it (for example, the “ram” scheme for an electronic auction);
creating a reserve for non-competitive receipt of subsequent, larger orders (for example, winning a design order for inclusion in project documentation requirements ensuring victory when choosing a contractor for a controlled company 8);
revision of conditions during the execution of the contract, including changes in prices, specifications, deadlines, fictitious acceptance of undelivered products 9 ;
ensuring super savings due to violations of legal requirements (wages, mandatory payments and deductions, production safety, etc.);
poor performance of obligations under the contract (use of materials of inappropriate quality, personnel qualifications, etc.).
In order to avoid similar embarrassments in the future (and not only in terms of dumping thresholds), customers can be advised to indicate in the procurement regulations that interest calculations are carried out with an accuracy of one percent (or a fraction of a percent), and rounding is done upward 18 .
For example: “fractional values are rounded to two decimal places using mathematical rounding rules.”
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How to fight dumping or “if you want peace, prepare for war!” 19
Many customers, when regulating their procurement activities, do not think about protection from abnormal price reductions or limit themselves only to anti-dumping measures provided for by the rules of the contract system. There are only three of these, and the scope of application of such instruments in the Law is very limited:
provision of security increased by one and a half times (but not less than the advance amount of 20);
different importance of price criteria when assessing dumping applications;
justification of the proposed price of the contract and the ability to perform it on the stated terms.
For example, Aeroflot PJSC allows the customer to use all of these options as anti-dumping measures, and if when performing work (providing services) it is necessary to have an admission certificate issued by SRO 21, the participant must also provide a conclusion from the SRO on the possibility of performing the work ( provision of services) at the price proposed in the application.
Also, the airline’s procurement regulations specifically stipulate that price reductions by reducing taxes and fees, including taxes provided for by special tax regimes, to budgets are not allowed. budget system Russian Federation.
State Corporation for space activities Roscosmos 22 and the state corporation Rostec 23 in order to combat dumping use only the first tool, requiring that when the price decreases by 25 percent or more, the procurement participant must provide a contract security in an amount exceeding one and a half times the amount of the contract security established in the contract documentation procurement It is curious that they do not require this if the dumping price reduction occurred during pre-contractual negotiations between the customer and the procurement participant.
In general, the arsenal for protection against dumping is much richer. Such mechanisms include:
rejection of an application with dumping or cancellation of a purchase;
the obligation to justify the possibility of executing the contract at the stated price (this is one of the most effective methods, but requiring significant costs for implementation);
additional requirements for the execution of the contract (acceptance, examination, carrying out on-site inspections supplier, etc.);
confirmation of good faith (usually by successful execution of similar contracts in the past, which, however, does not provide a guarantee against problems in the future);
establishing a maximum permissible value for evaluation (“cut-off for dumping”: “if a price reduction of more than 25% is proposed, the application according to the “price” criterion is assigned 100 points” - i.e. a further price reduction does not bring additional points to the procurement participant );
the use of range intervals to reduce the significance of criterion 24 (for example, participants are ranked as the offered price increases, and then divided, depending on places, into 4 groups, those in the first receive 100 points, the second - 65, the third - 25...) ;
increased security for the performance of the contract (for example, if the price is reduced by more than 20%, the participant must provide security for the performance of the contract in the amount of one and a half times the advance payment when concluding the contract);
different importance of criteria during evaluation (without dumping, the importance of price is 80%, with dumping – 20%);
correction (lowering and increasing) coefficients when evaluating according to price criteria.
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19 Si vis pacem, para bellum (lat.) - Cornelius Nepos, biography of the Theban commander.
20 And in the case of relatively small purchases - confirmation of good faith, by indicating previously successfully completed contracts.
21 SRO is a self-regulatory organization.
22 Regulations on the procurement of goods, works, services of the state corporation for space activities "Roscosmos" (as amended by the decision of the Supervisory Board of the State Corporation "Roscosmos" dated June 29, 2016 No. 6-NS).
23 Unified regulations on the procurement of the state corporation "Rostec" (Approved Supervisory Board State Corporation"Rostec" protocol dated March 18, 2015 No. 2).
24 This technique is often used to manage the results of a competitive procedure, when the desired applicant wins a little in one criterion, but lags far behind in another.
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Let's take a closer look at the last tool using an example 25
When evaluating applications according to the “price” criterion (its significance is 30%), the formula is used:
Rai = ((Amax - Ai) / Amax) x 100 x L
Amax – initial (maximum) contract price;
Ai - proposal of the i-th participant;
L - price deviation coefficient.
|
Price deviation coefficient (L) |
|
|
A participant in the request for proposals proposed a price reduction from 0% to 5% |
|
|
A participant in the request for proposals proposed a price reduction of more than 5% to 15% |
|
|
A participant in the request for proposals proposed a price reduction of more than 15% to 25% |
|
|
A participant in the request for proposals proposed a price reduction of more than 25% to 33% |
|
|
A participant in the request for proposals proposed a price reduction of more than 33% |
Thus, in the case of using the approach described above, both insufficient price reduction and its underestimation are taken into account:
|
Sentence 1 |
Sentence 2 |
Sentence 3 |
|
|
without L |
As for the possibility of rejecting an application with dumping, such a decision is not common in practice, but it does occur. For example, according to Procurement Regulation 26, the customer reserves the right to reject an application if the price proposed in it, in combination with other information specified in the application, is abnormally low (by 25% 27 or more of the initial maximum contract price) and there are reasonable doubts about the ability of the participant to fulfill the contract on the proposed terms.
However, the use of such a solution in its pure form is not recommended, since it has signs of limiting competition. Therefore, it is more correct to reject such an application only if the procurement participant cannot justify the price. Or, as a kind of “stop tap”, in such situations, cancel the purchase (but in this case, other participants may rightly consider that their rights have been violated).
Of course, the use of all the above-described anti-dumping tools in practice generates a lot for both the customer and the procurement participant.
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25 Resolution of the Arbitration Court of the North-Western District dated February 12, 2016 in case No. A56-28921/2015.
26 Regulations on the procurement of goods, works, services of JSC RTKomm.RU (approved by the decision of the Board of Directors of JSC RTKomm.RU, minutes dated December 22, 2014 No. 237. Similarly - in the Regulations on the procurement of goods, works, services of PJSC Bashinformsvyaz" (version 2) (approved by the decision of the Board of Directors of PJSC Bashinformsvyaz, minutes dated September 21, 2015 No. 10.
27 Or another percentage established in the procurement documentation.
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Bad advice to a procurement participant or how not to justify a price reduction
Justification for reducing the offer price often confuses the procurement participant. Let's consider one such example 28, in which the winner of an electronic auction sent the customer a signed draft contract with two justifications for the dumping reduction 29.
The first option was an estimate compiled on the basis of the estimate and regulatory framework OSNBZH-2001 for the initial (maximum) price and a table from which it followed that the price reduction would be obtained by reducing such estimate items as “overhead costs” and “estimated profit "(by applying reduction factors). At the same time, no specific explanations were provided through which measures or sources would reduce costs for these items.
The analysis carried out by the customer clearly showed that practical implementation such reduction in ways that do not contradict Russian legislation(for example, in compliance with the requirements for minimum payment labor with all the obligatory ones) is simply not possible.
The second option partially duplicated the first - an estimate was presented, drawn up on the basis of the estimate and regulatory framework OSNBZH-2001 for the initial (maximum) price, which indicated that a reducing factor should be applied to the final amount.
The reasons for its use were given as follows:
Payroll (labor costs) - through the use of new technologies in the production of work and the attraction of more qualified workers in the production of work;
materials - by purchasing materials at wholesale prices in nearby settlements;
EMM (costs of operating machines and mechanisms) - due to rational rental of mechanisms.
At the same time, just like in the first version, any specifics were missing. Neither what kind of “new technologies” would be used, nor the types of work and the list of professions for which the participant planned to use workers of higher qualifications were not indicated.
At the same time, it is quite rightly noted that attracting workers with a higher salary, other things being equal, on the contrary, should increase costs, because their labor is paid at higher tariff rates. Here you can recall an aphorism from army humor: a company of soldiers with shovels can replace an excavator. But if you decide to say the opposite, you should clearly state this in the justification.
As for materials, also, a simple declaration is not enough. A list of prices for materials, a proposed list of organizations and settlements, in which materials will be purchased at “wholesale prices”, price lists from prospective suppliers and their comparison with average market prices for the range of materials used.
A similar gap was observed in terms of the costs of operating machines and mechanisms - the concept of “rational rental of mechanisms” was not deciphered. It was necessary to provide a list of the mechanisms used (machines, equipment) and the expected volume of its use, rental costs, proposed lessors of the mechanisms and their price lists.
The absence of such justification led to the conclusion of the court (and earlier - the customer and the FAS Russia commission) that the “rationalization” of the rental of machinery, associated with a reduction in the time or volume of use of mechanization during work, ceteris paribus, should increase the use labor force, increased labor costs and, consequently, labor costs.
And the court’s conclusion looks like a “control shot in the head” that the provision of two options for justifying the reduction in the contract price at once could mislead the customer due to the fact that from the information presented it is impossible to draw clear conclusions about what criteria and indicators will be used contract price has been reduced.
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28 Decision of the Court of Justice of the Novosibirsk Region dated December 19, 2016 in case No. A45-11853/2016.
29 As in the joke from forensic humor, “Do you have an alibi? - oh yes, as many as three!
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Don’t ask anyone for anything... They’ll offer it themselves?! 30
If the customer uses a tool to justify a proposal for dumping, it is important to clearly define the obligation for the participant to provide relevant information and documents, their composition and other requirements.
Sometimes the customer seeks to ensure flexibility of work, for example, by stipulating that documents can be requested by the commission. Which often creates problems both for the participants and for the customer himself.
For example, 31, in its procurement regulations, the customer established that a dumping application is rejected if the price of the contract (contracts) proposed in it, in combination with other information specified in the application, is abnormally low and the customer has reasonable doubts about the ability of the participant to fulfill the contract on the proposed conditions.
In this case, the procurement commission has the right to request from the participant the structure of the contract price offered by him and the justification for such a contract price. And the participant who submitted such an application is obliged to provide the structure of the proposed contract price and the justification for such contract price.
Such wording in the procurement regulations and documentation can lead to disorientation of the procurement participant: is it necessary to proactively provide documents (in applications or when signing a contract) or to wait for a request from the customer’s commission?
In the example considered, the application of the participant recognized as the winner of the competition contained a dumping price. However, the commission did not request the structure of the proposed price and justify it.
As a result, the courts came to the conclusion that the procurement regulations and procurement documentation do not contain indications mandatory submission participant of the application containing the dumping price, the structure of the contract price offered by him and the justification for such contract price, and they also do not contain instructions on the mandatory rejection of the application with the dumping price in the event of failure to provide the information requested by the procurement commission.
“The above mislead procurement participants regarding the composition and content of an application for participation in an electronic auction and can lead to the creation of advantages for one of the procurement participants, which is contrary to the principles of equality, fairness, non-discrimination and unreasonable restrictions on competition in relation to procurement participants established by clause. 2 hours 1 tbsp. 3 Federal Law No. 223-FZ and Part 1 of Art. 17 of Federal Law No. 135-FZ,” the court indicated.
This situation can be avoided by clearly defining in the procurement regulations and, accordingly, the procurement documentation: either the price justification is necessarily included in the application (or sent in the prescribed manner, for example, together with the signed project contract), or is provided only at the request of the customer commission .
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30 Free interpretation of the immortal quote from “The Master and Margarita” by M. Bulgakov: “Never ask for anything. Never and nothing, and especially among those who are stronger than you. They will offer and give everything themselves!”
31 Resolution of the Arbitration Court of the Ural District dated December 24, 2016 in case No. A60-27171/2015.
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Let's sum it up
The examples described above show that it is problematic for the customer to completely eliminate the risks that arise when submitting abnormally cheap proposals and working with a supplier on dumping conditions. However, minimizing them by competently finalizing the procurement regulations and procurement documentation is quite possible.
To determine the dumping threshold, it seems appropriate to consider the deviation from the average (calculated without taking into account abnormal deviations) prices of procurement participants, and as the main tool - the obligation to justify the ability to fulfill obligations on the stated terms by the dumping procurement participant (price structure, resources, etc.) in combination with confirmation of his positive experience in working under similar contracts and more careful control of each stage of the contract execution.
Having selected the necessary “weapons” from the available arsenal, it is important to carefully determine the procedure for their use in the procurement regulations, not forgetting to improve them as law enforcement practice is formed. Therefore, the process of improving the rules of procurement activities from the customer should take place regularly, since the law does not limit the number and frequency of changes to the procurement regulations.
Webinars by this teacher:
The procedure for evaluating applications to avoid unreasonable price reductions during procurement
Today we will talk about how, within the framework of competitive procedures under 223-FZ, it is necessary to limit the influence of the contract price (contract price criterion) on the result of evaluating and comparing applications. Why is this necessary? In most cases, the customer does not need a price reduction, contrary to the opinion of the FAS and other authorities, the authors of procurement reforms. The logic is simple: due to a reduction in price, the quality of the goods/work/services supplied decreases. That is why, as part of procurement, customers are faced with the concept of dumping.
Dumping (from the English dumping - “dumping”): sale of goods and services at artificially low prices. Dumping prices are significantly lower market prices, and sometimes even lower than the cost of the product or service.
Why and when do procurement participants use dumping?
- In case of acute and urgent need for cash oh, when you need to get an order at any cost with the expectation of “at chance”. After all, you need to maintain the company, pay salaries to employees and somehow cover your expenses.
- In order to obtain contact with the customer.
- For the purpose of “collapsing” the procurement and extorting funds from the winner of the procurement procedure and the customer.
That is why it is necessary to use “anti-dumping measures”, which are not prescribed in 223-FZ, but they can always be established in the Procurement Regulations. According to 44-FZ, these measures are expressed in increased contract security (one and a half times the amount): if the participant has reduced the price by more than 25%, then the customer is obliged to request increased contract security.
Many customers in the Procurement Regulations provide for measures to protect their interests from economically unjustified price reductions during procurement. The following tools exist:
- As in 44-FZ: through the establishment of an increased amount of security for the execution of the contract (1) and / or the need for the participant to provide documentary evidence of the validity of the contract price offered by him (2). The developers take Article 37 of the Law “On the Contract System” as a basis and include it in the Regulations.
- By establishing a procedure for evaluating and comparing applications, which makes the use of dumping pointless and ineffective for the procurement participant.
Example 1. if, during a procurement, a procurement participant with whom a contract is concluded offers a contract price that is twenty-five or more (?) percent lower than the initial (maximum) contract price, the contract is concluded only after such participant provides security for the performance of the contract in the amount exceeding one and a half times (?) the amount of security for the execution of the contract specified in the procurement documentation, but not less than the amount of the advance (if the contract provides for the payment of an advance).
How effective is this measure? From the speaker’s point of view, it is not very effective, since it does not relieve the customer from those participants who want to violate the procurement procedure and receive any contract by offering low price. Also in this case, the customer is not protected from those who file complaints and make money from “demolition” of procurement procedures. Thus, it is worth solving the problem before it arises.
Example 2. If, during a procurement, a procurement participant offers a contract price reduced by 25 percent or more (?) in relation to the initial (maximum) contract price specified in the procurement documentation, the procurement participant recognized as the winner of the procurement procedure or the only participant, whose application corresponds to the procurement documentation, is obliged to provide the Customer with a written justification for the proposed contract price, which may include a letter of guarantee from the manufacturer indicating the price and quantity of the goods supplied, documents confirming the availability of goods from the procurement participant, an estimate for the work, and other documents and calculations confirming the ability of the procurement participant to supply goods, perform work, provide services at the proposed price.
This measure arises already at the stage of concluding a contract, so it can also be considered ineffective. Dumping is illegal, so you can resist it: draw up the documentation in such a way that not a single participant will understand how to fill it out correctly.
A case from practice: in 2011 there was a series of 10 auctions, 200 applications were submitted. 190 were rejected, leaving only 10. The applications were rejected legally, but a scandal arose. In order not to create unnecessary noise, it is much more effective and preferable from the point of view of the customer’s interests to remove dumping using the procedure for evaluating and comparing applications in the procurement documentation.
How to do this? Apply the following measures:
- The weight (significance) of the contract price criterion, including the “floating” (changeable) weight (significance) of the criteria for evaluating and comparing applications for participation in the procurement procedure when the price is reduced by procurement participants below certain values (in relation to the NMCC). Within the framework of 223-FZ, the customer, when establishing the weight (significance) of the contract price criterion, is bound only by his Procurement Regulations, that is, he can establish any weight (significance) of the “contract price” criterion (any percentage, as stated in the Regulations). It is possible for the customer to use a “floating” (changeable) weight (significance) of the criteria for evaluating and comparing applications. If you put 10% on price and the rest on non-cost evaluation criteria, then price will have virtually no effect on the results of the procedure. What is the “floating” weight of criteria?
- Application of an evaluation formula based on the “contract price” criterion, in which the proposals of procurement participants are evaluated not in relation to the lowest price offered, but in relation to the initial (maximum) contract price specified in the procurement documentation.
- Use of a special coefficient (indicator) for reducing the contract price when evaluating and comparing bids when procurement participants reduce the price below a certain framework (in relation to the NMCC).
Example. When carrying out the procurement procedure, the customer has the right to establish different values of the significance of the bid evaluation criteria for cases where a procurement participant submits an application for participation in the procurement procedure containing a proposal for a contract price that is: 1) up to twenty-five percent (?) lower than the initial (maximum) contract price; 2) twenty-five or more (?) percent below the initial (maximum) contract price. In the case of submitting an application for participation in a procurement procedure containing a proposal for a contract price that is twenty-five or more (?) percent lower than the initial (maximum) contract price, 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 evaluation of applications.
The big advantage of 223-FZ: the criteria can be specified in the Procurement Regulations independently. The price of the contract will not be the decisive factor.
The customer’s use of “floating” (changeable) weight (significance) when evaluating and comparing applications makes the use of dumping by procurement participants pointless.
There are also purchasing innovations: indicators of the coefficient of reduction in the contract price, that is, a criterion for the deviation of the contract price. This order was discovered when comparing judicial practice.
Legal position: the customer’s use of the price deviation criterion in order to exclude economically unjustified reductions in the contract price by procurement participants is legal.
Resolution of the Arbitration Court of the North-Western District dated February 12, 2016 in case No. A56-28921/2015
Case study: A housing and communal services company purchased repair and maintenance services for elevators in St. Petersburg. The competition documentation stated the following point: the rating awarded to the participant’s application according to specified criterion, is determined by a formula that includes the price deviation coefficient. The value of the price deviation coefficient is set by the customer depending on the contract price reduction proposed by the tender participant: if the tender participant proposes a price reduction from 0% to 5%, then the value of the price deviation criterion is “1”, from 5% to 15% - “1.5” ", from 15% to 25% - "2", from 25% to 33% - "1.5", more than 33% - "1".
Knowing the practice of your region, you can predict decisions. Territorial body FAS cannot ignore the position of the Arbitration Court of its region. The customer justified his actions with the representation of the prosecutor's office of the St. Petersburg district, which stated that when repairing and servicing elevators, prices had previously been reduced, which led to ineffective spending budget funds. That is, the customer justified why he needed it. Using this approach, you can “draw” any result of the bid comparison and evaluation stage. Taken together, all measures give the desired assessment result. This can be used not only for classic “anti-dumping” purposes, but also when the problem of VAT accounting arises when assessing and comparing applications.
The problem of accounting for VAT when assessing and comparing applications and its solution using “anti-dumping” measures
Many people believe that it is impossible to solve the VAT problem in the procedure for assessing and comparing applications. But that's not true. Some customers need to refund VAT, so it is not profitable for them to work with a supplier who uses a simplified taxation scheme.
A basis for comparing price offers is established. This 18% is taken away from the participant applying VAT, and price offers are assessed at real value.
In fact, the price may not change or fall at all, but the supplier will be given an advantage at the stage of evaluating and comparing applications.
Legal position: in the procedure for evaluating and comparing applications, it cannot be established that the price offers of procurement participants with VAT are evaluated without VAT, since the evaluation procedure applies to all procurement participants, including those applying a different tax regime.
Resolution of the Arbitration Court of the Far Eastern District dated July 29, 2015 in case No. A73-14973/2014
What is the logic of the court and the FAS? The fact is that the use, when evaluating applications, of deducting VAT from the price offers of procurement participants who are payers of this tax, which the applicant has not denied, may lead to the creation of preferential conditions for these participants compared to participants using a simplified taxation system. That is, lead to the creation of unequal conditions and, accordingly, restriction of competition, which contradicts paragraph 2 of part 1 of article 3 of the Procurement Law.
As the appeal board correctly determined, the procurement procedure established by the company in the tender documentation allows for a reduction in the price offer of a participant who is a VAT payer by the amount of the recorded VAT, while the price offers of participants applying a different tax regime remain unchanged.
Example of illegal calculation:
Example of legal calculation of points: initial (maximum) contract price: 100 rubles 2 applications: Participant No. 1: price 95 rubles, including VAT 14.49 rubles Participant No. 2: price 84 rubles (16% drop) Price deviation coefficient when falling to 15% - 2, over 15% - 1. Number of points for participant No. 1: (100-95): 100 x 100 = 5 points Multiplying by the deviation coefficient 2 we get 10 points Number of points for participant No. 2: (100 -84): 100 x 100 = 16 points Multiplying by the price deviation coefficient 1 we get 16 points The difference in points for the contract price criterion between participant No. 1 and No. 2 = 6 points If we set low significance (weight) for the contract price criterion (for example , 10%), then participant No. 1 will have: 5 points x 0.1 = 0.5 points; participant No. 2 will have: 16 points x 0.1 = 1.6 points.
Thus, with the help of anti-dumping measures, you can achieve the desired result and know 100% the results of the auction. This is done not through one criterion for evaluating and comparing applications, but through managed non-cost criteria. You can prescribe certain criteria with which you can find out the final scores: deadline for completing the work, delivery time of the goods, warranty period, presence or absence of an advance payment, and so on.
Questions from participants
Why is the Central Office of the FAS Russia not fighting dumping? Indeed, in certain types of procurement, for example, in construction, it is possible to limit the offer to reduce the price by no more than 10%.
There is a corruption component in terms of imposing the system electronic auctions. It is a fact that during the government procurement reform the interests of large Russian banks are lobbied. These are hundreds of billions of rubles of funds that are spent in them. That is why the main method of procurement is an electronic auction.
Is the payment procedure an essential condition?
Depending on the type of contract. If the parties call these conditions essential and stipulate this in the contract.
Contract up to 100,000 rubles. The contract price should not exceed 84,000 rubles excluding VAT?
The contract price can be 100,000 rubles, VAT is paid in full.
One participant offered a price excluding VAT. How to calculate the price criterion?
As written in the Procedure for Evaluation and Comparison of Applications. It is established in the Procurement Regulations.
If they exist, then yes. Usually terms of reference and specification form part of the contract.
Under dumping in the sphere public procurement is understood pricing policy participant, providing for the deliberate underestimation of the proposed contract price by 25% or more. Of course, there are participants who are ready to work without profit or even at a loss in order to “shine up” on the procurement market and prove themselves. However, in most cases, a significant price reduction leads to unpleasant consequences for the customer. What dumping can lead to So, deliberate dumping can result in unpleasant situations for the customer.
- The winner’s refusal to enter into a contract that is unfavorable for him and, as a consequence, the need to conduct the auction again.
- Unfair execution of the contract, the use of low-quality cheap materials when performing work/providing services and, as a result, the need to terminate the contract unilaterally or in court.
Article 37. anti-dumping measures during competitions and auctions
And the winner was the participant who managed to do price offer with a minimum step. Which anti-dumping measures provided for in 44-FZ? With the advent of 44-FZ, the situation changed in better side, but, in my opinion, very insignificantly.
So, what anti-dumping measures appeared in 44-FZ? According to Part 1 of Art. 37 44-FZ, if during a tender or auction the NMCC is more than 15 million rubles and the procurement participant with whom the contract is concluded offers a contract price that is 25% or more lower than the NMCC, the contract is concluded only after such participant provides performance security contract in an amount exceeding 1.5 times the amount of contract security specified in the documentation for the tender or auction, but not less than the amount of the advance (if the contract provides for the payment of an advance). Those. if the NMCC is more than 15 million.
How anti-dumping measures are applied in government procurement
Anti-dumping measures under 223-FZ 1. Anti-dumping measures under 44-FZ The concept of dumping Dumping (from the English dumping - dumping) is the sale of goods (work, services) at artificially low prices. It's no secret that contracts with artificially low prices are mostly fraudulent.
The dumping procurement participant receives an advance payment (if any), but the work remains unfulfilled. In addition, dumping contributes to a general decline in the level of work (services provided) and the quality of supplied products.
However, as practice has shown, dumping is resorted to not only by scammers or fly-by-night companies, but also by completely decent organizations. And the reason for such actions is obvious - the lack of proper experience and qualifications for healthy competition.
“Taran” dumping scheme It is quite difficult for young organizations, as well as newly established individual entrepreneurs without work experience, to participate in government procurement.
Anti-dumping measures under 44-FZ and 223-FZ
As preventive measures The winning bidder either provides enhanced contract performance security or evidence of good faith. In some cases, he may be required to justify the final cost.
Important
Differences in 44-FZ and 223-FZ Art. 37 44-FZ requires anti-dumping measures to be applied to competitions and auctions if, as a result of them, the NMTsK is reduced by 25% or more. When holding a competition, documents confirming good faith are attached to the application.
The customer's commission checks them and, if false information is found, rejects the participant. If dumping occurs during the auction, the winner must confirm his honest intentions with documents, attaching them to the signed contract.
Otherwise, it may end up on the register of unscrupulous suppliers.
What you should know about anti-dumping measures in procurement under 44-FZ and 223-FZ
A template for providing information can be downloaded here. When to provide information related to anti-dumping measures Anti-dumping measures are provided within the framework of electronic auctions and competitions.
Attention
In the first case, a set of documents proving good faith intentions must be provided when signing the draft contract. Otherwise, it will be considered unsigned, and the participant will be considered to have evaded the conclusion.
As for the competition, participants offer a price in advance, therefore documents confirming good faith must be provided as part of the application. Otherwise it will be rejected. Exceptions to the rule The law provides for several cases when special anti-dumping measures are applied or they are not applied at all.
The latter is possible in the case of the purchase of vital medications.
What is an anti-dumping measure? anti-dumping measures in law 44 Federal Law of the Russian Federation
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Anti-dumping measures
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Author: Daria Nasedkina September 12, 2017 Customers are required to apply anti-dumping measures to bidders. Let's consider when and how they are applied according to 44-FZ and 223-FZ. What are anti-dumping measures Anti-dumping measures are applied when making purchases that are carried out by competitive means. Their goal is to prevent dumping, i.e. artificially reducing the final contract price by 25% or more. Such discounts are fraught with the restriction of competition by unscrupulous participants, as well as the risk for customers to receive a low-quality product or service. Of course, there are cases when honest suppliers can reduce the price even below cost, for example, for the sake of entering the market. This is how they look forward to promising work. But, as practice shows, more often such schemes are aimed specifically at eliminating competitors.
The specified decision of the procurement commission is recorded in the protocol of consideration and evaluation of applications for participation in the competition or consideration of a single application for participation in the competition; 2) the procurement participant with whom the contract is concluded, when sending the signed draft contract to the customer during the auction. If such a participant fails to comply with this requirement, he is recognized as having evaded concluding the contract.
If the procurement commission recognizes the proposed contract price as unreasonable, the contract with such a participant is not concluded and the right to conclude a contract passes to the auction participant who offered the same price as the auction winner, the contract price or whose proposal for the contract price contains the best conditions for the contract price, following the conditions proposed by the auction winner.
Anti-dumping measures during procurement are applied when carrying out
Anti-dumping measures under 223-FZ Companies that fall under 223-FZ carry out their purchases in accordance with the Constitution of the Russian Federation, the Civil Code of the Russian Federation, 223-FZ, 135-FZ, other federal laws and regulatory legal acts of the Russian Federation, as well as approved and placed in the unified information system (UIS) by the Procurement Regulations. According to Part 2 of Art. 2 223-FZ Procurement Regulations is a document that regulates all procurement activities of the customer and must contain procurement requirements, including the procedure for preparing and conducting procurement procedures (including procurement methods) and the conditions for their application, the procedure for concluding and executing contracts, as well as other provisions related to procurement. This means that each customer independently develops its own Procurement Regulations, which prescribes procurement methods, the procedure for their preparation and implementation, incl.
See the text in a future edition. 9. If the subject of the contract for the conclusion of which a competition or auction is held is the supply of goods necessary for normal life support (food, means for providing emergency services, including specialized emergency medical care in an emergency or urgent form, medicines, fuel), a procurement participant who has proposed a contract price that is twenty-five percent or more below the initial (maximum) contract price is obliged to provide the customer with a justification for the proposed contract price, which may include a letter of guarantee from the manufacturer indicating the price and quantity of the goods supplied, documents confirming availability of goods from the procurement participant, other documents and calculations confirming the procurement participant’s ability to supply the goods at the proposed price. ConsultantPlus: note.
The Procurement Regulations of an autonomous institution contain rules on the application of anti-dumping measures to all procurement participants without exceptions. We are talking about cases in which, as a result of the procurement, the contract price is reduced in relation to the initial (maximum) by 25% or more (dumping price). One of the anti-dumping measures is the provision by the procurement participant with whom the contract is concluded at a dumping price of an increased amount of security for the execution of the contract.
Should this rule be applied to procurement participants - small and medium-sized businesses, taking into account the restrictions established in clause 25 of the Regulations on the specifics of the participation of small and medium-sized businesses in procurement, approved by Decree of the Government of the Russian Federation of December 11, 2014 N 1352 (from January 1 2018, does this provision also apply to this autonomous institution)?
Having considered the issue, we came to the following conclusion:
The customer cannot establish a requirement for the amount of security for the execution of a contract concluded at a dumping price in an amount exceeding 5% of the initial (maximum) price of the contract or the amount of the advance, if the contract provides for the payment of an advance, if such a purchase is carried out only among small and medium entrepreneurship.
Rationale for the conclusion:
First, we note that according to the Federal Law of July 18, 2011 N 223-FZ “On the procurement of goods, works, services by certain types of legal entities” (hereinafter referred to as Law N 223-FZ), the goals of regulating these procurements include expanding opportunities for the participation of legal and individuals in the procurement of goods, works, services for the needs of customers and stimulation of such participation; development of fair competition, ensuring publicity and transparency of procurement; preventing corruption and other abuses. And among the principles that customers should be guided by when purchasing are, in particular, the principles of equality, fairness, non-discrimination and unreasonable restrictions on competition in relation to procurement participants (Law N 223-FZ).
By virtue of Law N 223-FZ, it is not allowed to present requirements to procurement participants, to the purchased goods, works, services, as well as to the terms of execution of the contract and to evaluate and compare applications for participation in the procurement according to criteria and in a manner that are not specified in the documentation about the purchase. The relevant requirements must be applied equally to all procurement participants, to the goods, works, services they offer, and to the terms of the contract. In accordance with Law N 223-FZ, the procurement documentation must contain information specified by the procurement regulations, including requirements for procurement participants and a list of documents submitted by procurement participants to confirm their compliance with the established requirements.
Neither the Russian Federation, which customers are guided by (Law N 223-FZ), nor N 223-FZ itself contains a closed list of requirements that may be presented to procurement participants, or a direct prohibition on the application of any requirement, and therefore the establishment by the customer in The provisions on the procurement of anti-dumping measures do not violate the requirements of N 223-FZ. In the Central District AS dated November 2, 2016 N F10-3708/16, it is noted that the establishment of anti-dumping measures in the procurement regulations helps to meet the customer’s needs for goods with the necessary indicators of price, quality and reliability, and also contributes to the most efficient use of funds when purchasing goods high quality.
At the same time, as you correctly noted, in paragraph 25 of the Regulations approved by the Government of the Russian Federation dated December 11, 2014 N 1352 “On the specifics of the participation of small and medium-sized businesses in the procurement of goods, works, and services by certain types of legal entities” (hereinafter referred to as the Regulations) , restrictions have been established in relation to purchases carried out among small and medium-sized businesses: if the documentation for such a purchase establishes a requirement for security for the execution of the contract, the amount of such security: a) cannot exceed 5% of the initial (maximum) price of the contract (lot price), if the contract does not provide for advance payment; b) is established in the amount of the advance, if the agreement provides for the payment of an advance.
Accordingly, if the customer belongs to the category of persons who are subject to the Regulations (clause 2 of the Regulations), and at the same time, the anti-dumping measures of the procurement regulations of this customer require a certain amount of security for the execution of the contract, this amount cannot be an amount exceeding 5% of the initial (maximum) price of the contract or the amount of the advance, if the contract provides for the payment of an advance, in cases of concluding a contract in accordance with paragraphs. "b" clause 4 of the Regulations (based on the results of purchases carried out only among small and medium-sized businesses).
Prepared answer:
Expert of the Legal Consulting Service GARANT
Chashina Tatyana
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Barseghyan Artem
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
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