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Dumped in the sphere public procurement means the price policy of the participant, which provides for a deliberate understatement 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 "light up" in 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, intentional dumping can turn into unpleasant situations for the customer.

The refusal of the winner to conclude a contract that is unprofitable for him and, as a result, the need to conduct auctions again.
Unfair performance of the contract, the use of low-quality cheap materials in the performance of work / provision of services and, as a result, the need to terminate the contract unilaterally or in court.

Article 37. Anti-dumping measures during tenders and auctions

And the winner was the participant who managed to make a price offer with a minimum step. What anti-dumping measures are provided for in 44-FZ? With the advent of the 44-FZ, the situation has changed for the better, but, in my opinion, very slightly.

And 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 NMTsK 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 NMTsK, the contract is concluded only after such a participant provides a contract performance security in an amount exceeding 1.5 times the size of the contract performance security specified in the tender or auction documentation, but not less than the advance payment (if the contract provides for payment advance). Those. if the NMCC is more than 15 million

How anti-dumping measures are applied in public procurement

Anti-dumping measures under 223-FZ 1. Anti-dumping measures under 44-FZ The concept of dumping Dumping is the sale of goods (works, 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), and the work remains unfulfilled. In addition, dumping contributes to a general drop in the level of work (services provided) and the quality of the products supplied.

However, as practice has shown, not only fraudsters or one-day firms resort to dumping, but also quite decent organizations. And the reason for such actions is obvious - the lack of proper experience and qualifications for healthy competition.

Dumping scheme "Taran" It is quite difficult for young organizations, as well as newly created individual entrepreneurs without work experience, to participate in public procurement.

Anti-dumping measures under 44-FZ and 223-FZ

As preventive measures the winning bidder either provides enhanced performance security or proof 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 tenders and auctions if, as a result of their conduct, the NMCC is reduced by 25% or more. During the competition, documents confirming good faith are attached to the application.

The commission of the customer checks them, and, in case of detection of inaccurate information, rejects the participant. If dumping was revealed during the auction, the winner must confirm good faith with documents, attaching them to the signed contract.

Otherwise, it may fall into the register of unscrupulous suppliers.

What you should know about anti-dumping measures in purchases under 44-FZ and 223-FZ

An information submission template can be downloaded here. When to provide information regarding anti-dumping measures Anti-dumping measures are provided for under electronic auctions and competitions.

Attention

In the first case, a set of documents proving good faith intentions must be provided when signing a draft contract. Otherwise, it will be considered unsigned, and the participant - evaded conclusion.

As for the competition, the 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 where 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 drugs.

What is an anti-dumping measure? anti-dumping measures in the law 44 fz rf

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Anti-dumping measures

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Author: Nasedkina Daria September 12, 2017 Customers are required to apply anti-dumping measures to bidders. Consider when and how they are applied according to 44-FZ and 223-FZ. What are anti-dumping measures Anti-dumping measures are applied in the course of purchases that are carried out by competitive means. Their goal is to prevent dumping, i.e. artificial reduction of the final price of the contract by 25% or more. Such discounts are fraught with 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 even honest suppliers can bring down the price even below the cost, for example, for the sake of entering the market. So 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 tender or consideration of a single application for participation in the tender; 2) by 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 the conclusion of the contract.
If the procurement commission recognizes the proposed contract price as unreasonable, a contract with such a participant is not concluded and the right to conclude a contract passes to the auction participant who offered the same as the auction winner, whose contract price or contract price offer contains the best conditions for the contract price following the conditions proposed by the auction winner.

Anti-dumping measures during procurement are applied during

Anti-dumping measures under 223-FZ Companies that are subject to 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 the Procurement Regulations approved and posted in the Unified Information System (EIS). According to part 2 of Art. 2 223-FZ Procurement Regulation 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 Procurement Regulations, which prescribes the methods of procurement, the procedure for their preparation and conduct, incl.
See text in a future edition. 9. If the subject of the contract for the conclusion of which a tender or auction is held is the supply of goods necessary for normal life support (food, means for providing ambulance, including emergency specialized, medical care in an emergency or urgent form, medicines, fuel), the procurement participant who offered the contract price, which is twenty-five percent or more lower than the initial (maximum) contract price, is obliged to provide the customer with a rationale for the proposed contract price, which may include a letter of guarantee from the manufacturer indicating prices and quantities of the supplied goods, documents confirming the availability of goods from the procurement participant, other documents and calculations confirming the possibility of the procurement participant to supply the goods at the proposed price. ConsultantPlus: note.

Anti-dumping measures are one of the special rules that are provided for by 44-FZ, aimed at protecting customers and suppliers from unfair competition. Customers are obliged to apply anti-dumping measures to bidders if they have crossed a reasonable limit of price reduction at the auction. 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 methods. Their goal is to prevent dumping, i.e. artificial reduction of the final contract price by 25% or more. Such discounts are fraught with restriction of competition by unscrupulous participants and the risk for customers to receive a low-quality product or service.

There are cases when honest suppliers bring down the price even below cost, for example, for the sake of entering the market. They do not count on promising work. But, as practice shows, more often such schemes are aimed at eliminating competitors.

As a precautionary measure, the winning bidder either provides increased performance security or proof of good faith. In some cases, he will be required to justify the final cost.

Differences in 44-FZ and 223-FZ

If dumping was revealed during the auction, the winner must confirm good faith with documents, attaching them to the signed contract. Otherwise, it will fall into the register of unscrupulous suppliers.

If increased security is chosen, the participant is obliged to present it before concluding the contract.

Anti-dumping measures under 223-FZ are applied somewhat differently. The text of the law does not mention them. But part 2 of Art. 2 223-FZ gives the Regulations on Procurement the right to regulate all procurement activities of the customer, including the preparatory stages. The customer has the right to introduce his own rules in the fight against dumping. They are either the same as in the law on the contract system, or different.

How to apply

When anti-dumping measures 44-FZ are applied, the enforcement of the contract is increased by 1.5 times, compared to that specified in the documentation, if the NMTsK is above 15 million rubles.

Since 01/01/2019, the rules for applying anti-dumping measures have been clarified with an initial maximum contract price of up to 15 million rubles. Interpretation of Art. 37 44-FZ has ceased to be twofold. Since this year, anti-dumping measures have been applied in this way: it is either securing the performance of a contract in one and a half times, or ensuring its performance in a “standard” one-time amount, together with information about good faith.

It is impossible to provide “good faith” without money or a bank guarantee as a security for the execution of a government contract.

It is important to note that when purchasing scientific, design or technological works through a competition, the customer has the right to evaluate applications with a normal decrease (up to 25%) according to one criteria, and with dumping - according to others (parts 7 and 8 of article 37).

If food, fuel, items for emergency and emergency medical care are purchased, then the participant with the dumping offer is obliged to provide the customer with a price justification. For these purposes, use:

a letter of guarantee from the manufacturer of the product;
documentary evidence of the availability of goods;
other papers confirming the possibility of delivery.

On July 1, 2019, part 13 of Art. 37 44-FZ. It obliges the customer to prescribe in the state contract a condition on the prohibition of transferring an advance payment if such a contract is signed with a procurement participant who has offered a price 25 or more percent lower than the NMTsK. This reduces cases of artificial and unjustified price reductions by unscrupulous procurement participants who do not plan to fulfill their obligations in order to exclude such participants from receiving an advance.

Features of application in procurement for SMP and SONKO

If the procurement is carried out with restrictions for SMP and SONCO, the participant is exempted from providing security for the performance of the contract, taking into account anti-dumping measures, if, prior to the conclusion of the contract, it provides information from the register of contracts on the execution of at least 3 contracts (excluding succession) within 3 years before the date of filing the application. These contracts must be executed without the application of penalties to it, and the sum of their prices is not less than the NMTsK (the maximum value of the contract price). If this information is not available, then the participant will provide security for the performance of the contract, taking into account anti-dumping measures in the usual manner. But the security is calculated from the price of the contract, and not from the NMCC, and cannot be less than the advance. This is indicated in Part 6, 8.1 of Art. 96 44-FZ.

Responsibility

For lack of information about anti-dumping measures, they will be fined, under Part 4.2 of Art. 7.30 Administrative Code, for 3000 rubles. An official will be punished for approving tender documentation, documentation about an auction, about holding a request for proposals, for determining the content of a notice on holding a request for quotations in violation of the requirements provided for by the legislation on the contract system.

When anti-dumping measures are not applied

Exceptions to the rule on the application of anti-dumping measures include several situations. Do not take such measures in the following cases:

at an electronic auction, which is held at the price of a unit of goods, work or services;
if they did not provide for the enforcement of the contract under Part 8 of Art. 96 44-FZ;
if you conclude an energy service contract;
if you purchase medicines from the Vital and Essential Drugs List and the price of all medicines is reduced by no more than 25 percent relative to their registered maximum selling price (part 12 of article 37 of 44-FZ).

Download the letter of the Ministry of Finance of October 13, 2017 No. 24-02-08/67122

Download the letter of the Ministry of Economic Development of January 13, 2017 No. D28i-289

Download the letter of the Ministry of Economic Development of August 17, 2016 No. D28i-287

Article 37. Anti-dumping measures during tenders and auctions

1. If, during a tender or auction, the initial (maximum) price of the contract is more than fifteen million rubles and the procurement participant with whom the contract is concluded proposes a contract price that is twenty-five percent or more lower than the initial (maximum) contract price, or a sum of prices for units of goods, work, services is offered that is twenty-five percent or more lower than the initial sum of the prices of these units, the contract is concluded only after such a participant provides a contract performance security in an amount exceeding one and a half times the size of the contract performance security specified in the documentation on the holding competition or auction, but not less than in the amount of the advance payment (if the contract provides for the payment of an advance payment).

2. If, during a tender or auction, the initial (maximum) price of the contract is fifteen million rubles or less and the procurement participant with whom the contract is concluded proposes a contract price that is twenty-five percent or more lower than the initial (maximum) contract price, or the sum of unit prices of goods, work, services is proposed that is twenty-five percent or more lower than the initial sum of the prices of these units, the contract is concluded only after such participant provides the contract performance security in the amount specified in Part 1 of this article, or information confirming good faith the performance of such a participant in accordance with paragraph 3 of this article, with the simultaneous provision by such a participant of the contract performance security in the amount of the contract performance security specified in the procurement documentation.

3. The information confirming the good faith of the procurement participant includes the 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 the application of penalties (fines, penalties) to such participant. At the same time, the price of one of such contracts must be at least twenty percent of the initial (maximum) contract price specified in the notice of procurement and procurement documentation.

4. In the event 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 paragraph 3 of this article shall be provided by the procurement participant as part of an application for participation in an open tender, a tender with limited participation, a two-stage tender, a closed tender, a closed tender with limited participation, a closed two-stage tender. The Procurement Commission rejects such an application if this information is found to be unreliable. The decision to reject such an application is recorded in the protocol for determining the supplier (contractor, performer), indicating the reasons for rejecting such an application, is brought to the attention of the procurement participant who sent the application no later than the business day following the day of signing the specified protocol. If the procurement participant, in the case provided for by Part 2 of this Article, as part of an application for participation in 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, does not provide information confirming his good faith in accordance with Part 3 of this Article, a contract with this participant is concluded after they provide a contract performance security in the amount one and a half times greater than the size of the contract performance security specified in the procurement documentation.

5. In the event of an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an auction, the information provided for in paragraph 3 of this article shall be provided by the procurement participant when sending the signed draft contract to the customer. If such a participant, recognized as the winner of a tender or auction, fails to comply with this requirement or if the commission for the procurement of information provided for in paragraph 3 of this article is recognized as unreliable, the contract with such participant is not concluded and he is recognized as evading the conclusion of the contract. In this case, the decision of the procurement commission is drawn up in a protocol, which is posted by the customer in a single information system no later than the business day following the day of signing the specified protocol.

6. The security specified in parts 1 and 2 of this article shall be provided by the procurement participant with whom the contract is concluded before its conclusion. A procurement participant who has not fulfilled this requirement is recognized as having evaded the conclusion of the contract. In this case, the evasion of the procurement participant from concluding a contract is documented in a protocol that is posted in a single information system and brought to the attention of all procurement participants no later than the working day following the day of signing the specified protocol.

7. When holding tenders for the purpose of concluding contracts for the performance of research, development or technological work, the provision of consulting services, the customer has the right to establish in the tender documentation different values of the significance of the criteria for evaluating applications for the cases when a tender participant submits an application containing a proposal for the contract price, which:

up to twenty-five percent below the initial (maximum) contract price;
twenty-five percent or more below the initial (maximum) contract price.

8. In the cases provided for in clause 2 of part 7 of this article, the value of the significance of such a criterion as the contract price is set equal to ten percent of the sum of the significance values of all criteria for evaluating bids.

9. If the subject of the contract for the conclusion of which a tender or auction is held is the supply of goods necessary for normal life support (food, means for providing emergency, including emergency specialized, medical care in an emergency or urgent form, medicines, fuel), the procurement participant who offered the price of the contract, the sum of unit prices of goods twenty-five percent or more lower than the initial (maximum) price of the contract, the initial sum of unit prices of goods, along with the requirements provided for in this article, is obliged to provide the customer with justified the proposed price of the contract, the sum of unit prices of goods, which may include a letter of guarantee from the manufacturer indicating the price and quantity of the goods supplied (except if the number of goods supplied cannot be determined), documents confirming the availability of goods from the procurement participant, other documents and calculations confirming the possibility of the procurement participant to supply the goods at the proposed price, the sum of the prices of the goods units.

10. The justification specified in paragraph 9 of this article shall be provided:

by the procurement participant who offered the price of the contract, the sum of unit prices of goods is twenty-five percent or more lower than the initial (maximum) price of the contract, the initial sum of prices of units of goods, as part of an application for participation in 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. If such a participant fails to comply with this requirement or if the procurement commission recognizes the proposed contract prices, the sum of the unit prices of goods as unreasonable, the application of such a participant is rejected. The specified decision of the procurement commission is recorded in the protocol of consideration and evaluation of applications for participation in the tender or consideration of a single application for participation in the tender;
the procurement participant with whom the contract is concluded, when sending a signed draft contract to the customer during an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an auction. If such a participant fails to comply with this requirement, he is recognized as having evaded the conclusion of the contract. If the procurement commission recognizes the proposed price of the contract, the sum of unit prices of goods as unreasonable, the contract with such a participant is not concluded and the right to conclude a contract passes to the procurement participant who offered the same contract price as the winner of this tender or auction, the sum of unit prices of goods or the contract price offer of which contains the best conditions for the price of the contract following the conditions proposed by the winner of this tender or auction. In these cases, the decision of the procurement commission is drawn up in a protocol, which is posted in a single information system and brought to the attention of all procurement participants no later than the working day following the day of signing the specified protocol.

11. If the winner of a tender or auction is recognized as having evaded concluding a contract, the procurement participant with whom, in accordance with the provisions of this Federal Law, a contract is concluded, the requirements of this article shall apply in full.

12. The provisions of this article shall not apply if, in the course of procurement of medicinal products included in the list of vital and essential medicinal products approved by the Government of the Russian Federation, the procurement participant with whom the contract is concluded offers the price of all purchased medicinal products reduced by no more than twenty-five percent relative to their maximum selling price registered in accordance with the legislation on circulation of medicinal products.

13. Payment of an advance payment upon execution of a contract concluded with a procurement participant specified in parts 1 or 2 of this article is not allowed.

Please tell me! The purchase was carried out under 44-FZ, the participant threw off the price of the contract by more than 25%, can he confirm his good faith with contracts (executed without fines and penalties) concluded under 223-FZ?

Answer

The customer holds a tender or auction, NMTsK ≤ 15 million rubles, and the winner reduces the price by 25 percent or more. Then the customer applies anti-dumping measures. The winner has a choice: provide a 1.5 times higher contract security or confirm good faith. This is stated in Part 2 of Article 37 of Law No. 44-FZ.

If the participant confirms good faith, the amount of the security does not change. How to confirm good faith - in the recommendation.

In what ways the participant confirms good faith

To confirm good faith, the winner provides the customer with information from the register of contracts. At the same time, the participant has a choice of which information to show.

1. Information about three or more contracts. At the same time, the winner fulfilled the contracts without penalties and within a year before the date when applications are submitted.

2. Information about four or more contracts. At the same time, the winner executed all contracts within two years before the date when the participants submit applications, and more than 75 percent of the contracts - without penalties.

3. Information about three or more contracts. At the same time, the winner executed the contracts without penalties and within three years before the date when the applications are submitted.

For all three options that are possible for the winner, the general rule applies. The cost of one of the contracts must be at least 20 percent of the price offered by the procurement participant. For example, the customer holds an auction and the NMCC - 15 million rubles. The participant proposed the price of the contract - 10.5 million rubles. The price of one of the contracts that the winner will provide must be at least 2.1 million rubles. (10.5 × 20%).

This is stated in Part 3 of Article 37 of Law No. 44-FZ and explained in the letter of the Ministry of Economic Development of Russia dated December 7, 2016 No. D28i-3260.

Law No. 44-FZ does not indicate that the participant must provide information on contracts with the subject of the procurement in which he won.

Situation: the winner of the purchase, which reduced the NMTsK by 25 percent or more, has been operating on the market for less than a year. How to prove good faith?

The participant has the right to provide the customer with information on three or more contracts that he executed without penalty. This is stated in Part 3 of Article 37 of Law No. 44-FZ and explained in the letter of the Ministry of Economic Development of Russia dated January 28, 2016 No. OG-D28-1419.

Situation: how to confirm good faith to the winner of a joint purchase

The winner of the joint procurement provides the customer with information from the register of contracts. At the same time, the price of one of the executed contracts must be at least 20 percent of the sum of the prices of all joint procurement contracts. This position is supported by specialists of the Ministry of Economic Development of Russia in a letter dated January 11, 2016 No. D28i-46.

Specialists of the Ministry of Economic Development refer to the fact that the NMTsK, which the customer indicates in the notice and documentation for joint purchases, is determined as the sum of the initial (maximum) contract prices of each customer. And the customer applies anti-dumping measures when the participant reduces the NMTsK from the notice by 25 percent or more (subparagraph “b”, paragraph 6 of the Rules, approved by Decree of the Government of the Russian Federation of November 28, 2013 No. 1088, Article 37 of Law No. 44-FZ).

Situation: Can a participant in an auction for milk confirm good faith with fruit contracts

Yes maybe.

To confirm good faith, the participant provides information from the register of contracts. The legislator did not establish that contracts should be for the supply of similar goods (part 3 of article 37 of Law No. 44-FZ, letter of the Ministry of Economic Development of Russia dated February 12, 2016 No. D28i-287).

Situation: is it possible to confirm good faith with contracts under 223-FZ, commercial contracts, subcontracts

No you can not. The participant confirms the good faith with information from the register of contracts under Law No. 44-FZ. Commercial contracts and subcontracts are not included in the register of contracts. Contracts under 223-FZ are included in the register of contracts under Law 223-FZ (part 3 of article 37 of Law No. 44-FZ).

How a Member Provides Integrity Information

Bidders provide information on good faith as part of the application, auction participants - with a signed draft contract. In this case, the customer acts depending on the situation.

The tender commission found that the information on good faith is unreliable. The commission rejects the application and enters the information into the protocol of consideration and evaluation of applications. The minutes indicate the reason why the application was rejected. The commission signs the protocol, and within the next business day, the customer notifies the participant that the application was rejected.

The bidder did not provide information on good faith as part of the application. The customer does not reject the participant's application, but concludes a contract only after the winner provides a 1.5-fold increase in contract security. In this case, if the customer has provided for an advance in the contract, the winner provides security, the amount of which is not less than the advance.

The bidder did not provide information on good faith or the auction commission found that the information is unreliable. The participant is recognized as evaded. The commission draws up the decision in minutes. The protocol is signed and placed in the EIS within the next working day.

This is stated in parts 4 and 5 of article 37 of Law No. 44-FZ, the decision of the Arbitration Court of the Volga District of June 23, 2016 No. F06-9551 / 2016, the decision of the Samara Regional Court of November 8, 2016 No. 21-2087 / 2016.

The customer signs the contract only after the winner provides information on good faith or security. This is stated in Part 2 of Article 37 of Law No. 44-FZ and explained in the letter of the Ministry of Economic Development of Russia dated November 8, 2016 No. D28i-2911.

No, the participant confirms his good faith with information from the register of contracts only under Law No. 44-FZ.

Hello dear colleague! In today's article, we will talk about anti-dumping measures, as well as the effectiveness of their application. These measures are aimed at reducing the risks of Customers in connection with the artificial underestimation of prices during tenders and auctions. In 44-FZ, anti-dumping measures are regulated by Article 37, and when conducting purchases under 223-FZ, they can be established by Customers in the Procurement Regulations. We will talk about all the nuances of using these measures below in this article. ( Note: this article was updated on April 25, 2019).

1. Anti-dumping measures under 44-FZ

1.1 The concept of dumping

Dumping(from the English dumping - reset) - the sale of goods (works, 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), and the work remains unfulfilled. In addition, dumping contributes to a general drop in the level of work (services provided) and the quality of the products supplied.

1.2 Taran dumping scheme

It is quite difficult for young organizations, as well as newly-baked individual entrepreneurs without work experience, to participate in public procurement. Therefore, dumping for “newcomers” has been and most likely will be the only working tool in the competitive struggle for a long time to come. The previous 94-FZ did not provide for anti-dumping measures, so cases of a serious decline during trading were quite common. In negligent suppliers, the so-called "Battering Ram" scheme was a favorite.

Briefly recall the meaning of this scheme. As a rule, three organizations participated in the conspiracy. The first participant, who was supposed to win the auction, took the first step with a slight price reduction (0.5-1% of the NMTsK). Then two other participants entered the game, who as quickly as possible knocked down the NMTsK contract until the submission of price proposals by other participants would be meaningless. Then, when considering the second parts of the applications, the applications of these participants were rejected, because. they knowingly attached the wrong documents. And the winner was the participant who managed to make a price offer with a minimum step.

1.3 What anti-dumping measures are provided for in 44-FZ?

With the advent of the 44-FZ, the situation has changed for the better, but, in my opinion, very slightly. And so, what anti-dumping measures appeared in 44-FZ?

According to part 1 of article 37 of 44-FZ, if during a tender or auction NMCC is more than 15 million rubles , the contract is concluded only after the provision by such a participant in the amount exceeding 1.5 times the amount of the contract performance security specified in the tender or auction documentation, but not less than the amount of the advance payment (if the contract provides for the payment of an advance payment).

That is, if the NMTsK is more than 15 million rubles, the procurement participant, when signing the contract, is obliged to provide one and a half times the security for the performance of the contract.

According to part 2 of article 37 of 44-FZ, if during a tender or auction NMTsK is 15 million rubles or less and the procurement participant with whom the contract is concluded, it is proposed contract price, which is 25% or more lower than the NMTsK , the contract is concluded only after such participant provides security for the performance of the contract in the amount exceeding 1.5 times the amount of the contract performance security specified in the tender or auction documentation, or information confirming good faith such participant on the date of filing the application, with the simultaneous provision by such participant of the contract performance security in the amount of the contract performance security specified in the procurement documentation.

That is, if the NMTsK is up to 15 million rubles, the procurement participant, when signing the contract, can provide a choice of:

- or one and a half times ensuring the performance of the contract;

- or documents confirming the good faith of such a participant + security for the performance of the contract established in the documentation.

1.4 What purchases are subject to anti-dumping measures?

Many procurement participants mistakenly believe that anti-dumping measures apply to absolutely all procurement procedures, including and. According to Article 37 of the 44-FZ, anti-dumping measures are applied ONLY to and .

1.5 Confirmation of the good faith of the procurement participant

The procurement participant can confirm his good faith by providing information on executed contracts for a certain period of time before the date of filing an application for participation in the tender or auction:

When conducting open competition , competition with limited participation , two-stage competition , closed competition , closed competition with limited participation , closed two-stage competition the specified information must be presented as part of the application (part 4 of article 37 of 44-FZ).

And when conducting open competition in electronic form , competition with limited participation in electronic form , two-stage competition in electronic form , auction a document confirming good faith must be provided to the Customer along with the signed contract (part 5 of article 37 of 44-FZ).

Important! Identification of the unreliability of the information provided in the case of "paper" tenders leads to the rejection of the application, and in the case of electronic procurement leads to the recognition of the participant as evaded from signing the contract.

1.6 What if your contract details are not in the registry?

If a contract with the Customer is concluded, but there is no information about the contract in the register, it is necessary first of all to contact the Customer to find out the reason for the absence of an entry in the register. For failure to provide or untimely provision of information on the conclusion of the contract and its execution, the administrative responsibility of the Customer is provided.

1.7 Special cases of application of anti-dumping measures under 44-FZ

1. If a tender is held for the performance of research, development or technological work, the Customer can set different values of the criteria for evaluating applications with a reduction price of up to 25% and over 25% of the NMCC (part 7 of article 37 of 44-FZ);

2. If goods are purchased for the normal life support of the population (food, first aid supplies, medicines, fuel, etc.), in addition to the usual anti-dumping measures (one and a half times enforcement of the contract or confirmation of the good faith of the procurement participant), the participant must also justify the price reduction by providing the customer (part 9 of article 37 of 44-FZ):

a letter of guarantee from the manufacturer indicating the price and quantity of the goods supplied (in free form);
documents confirming the availability of goods from the procurement participant (waybill, checks);
other documents and calculations confirming the ability of the procurement participant to deliver the goods at the proposed price

3. According to Part 12 of Article 37 of 44-FZ, anti-dumping measures are not applied if, when purchasing medicines included in the list of vital and essential medicines approved by the Government of the Russian Federation, the procurement participant with whom the contract is concluded offers the price of all purchased medicines, reduced by no more than 25% relative to their maximum selling price registered in accordance with the legislation on the circulation of medicines.

As you can see, with the advent of Federal Law 44, the requirements for procurement participants resorting to dumping have become tougher. However, it is difficult to say that this has radically changed the situation for the better.

Firstly, those participants who used dumping before 44-FZ also continue to use it. Of course, this "pleasure" has become more expensive, but not so much as to completely abandon it.

Secondly, those participants who, as before, have a sufficient level of qualification and experience, are unlikely to try to win an order only at the expense of price.

Only a combination of factors, such as: application security, anti-dumping measures, contract enforcement, fines and penalties, as well as the lack of an advance payment, cut off negligent suppliers from purchases. That is, anti-dumping tools are only effective in combination with the above measures, and do not give the desired effect when used separately.

2. Anti-dumping measures under 223-FZ

Companies that are subject to 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 the Procurement Regulations approved and posted in the unified information system (EIS).

According to Part 2 of Article 2 of 223-FZ, the Procurement Regulation 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 security.

This means that each Customer independently develops its Procurement Regulations, which prescribes the methods of procurement, the procedure for their preparation and conduct, incl. and applied anti-dumping measures. These measures may differ from those provided for in Article 37 of 44-FZ.

This concludes my article. If you have any questions, then ask them below in the comments to this article.