Information confirming the integrity of the procurement participant isinformation about transactions completed by participants in procurement tenders previously. We will consider the main points regarding confirmation of the reliability of a person participating in procurement in our article.

Information confirming the integrity of the procurement participant, in accordance with Law No. 44-FZ

Law “On contract system..." dated 04/05/2013 No. 44-FZ introduced a new (in comparison with the previous version of the legislative act) norm, which includes a number of anti-dumping techniques for those participating in competitive and auction procedures. Dumping is a feigned reduction in prices for goods and services compared to market prices. Accordingly, anti-dumping measures are measures aimed at combating such a decrease.

In the understanding of Law No. 44-FZ, dumping can be considered a price reduction of 25% or more from the initial contract rate. In this case, the following are defined as anti-dumping techniques:

1. With the initial contract value exceeding RUB 15,000,000. - provision of interim measures in an amount 1.5 times greater than the security parameter defined by the auction or competitive documentation (but not less than the amount of the advance, if it is assumed).
2. With an initial contract value of RUB 15,000,000. and less:
   • security of one and a half times the amount of security determined by the tender documents,
   • or the presence of information confirming the integrity of the procurement participant (44-FZ, Part 3, Article 37).

Law No. 44-FZ does not provide for anti-dumping procedures in any other form and can be appealed by participants in a competition or auction.

Thus, the submission of data on the reliability of a procurement participant for consideration is an anti-dumping procedure used in the situation specified in the law and carried out in a normatively defined form. The concept of information that can be confirmed in good faith business reputation procurement participant, defined in Part 3 of Art. 37 of Law No. 44-FZ. According to its provisions, it receives data from the register list of contracts concluded by the customer.

Register of contracts

The concept of a register of contracts is established by Art. 103 of Law No. 44-FZ, the procedure for its formation is the Decree of the Government of the Russian Federation “On the procedure for maintaining the register...” dated November 28, 2013 No. 1084. The same resolution approved the rules for filling out the register.

According to these documents, the mentioned list of contracts is a consolidated database consisting of information about all transactions concluded in accordance with the rules of Law No. 44-FZ, excluding those completed with one supplier within the framework of paragraphs. 4, 5, 23, 42, 44 and 45, as well as clause 46 (in relation to contracts concluded with individuals) and clause 52 of Part 1 of Art. 93 of the said law, and transactions containing state secrets. The last type of contracts is formed into a separate register, closed to public access.

The register of contracts should be available for free viewing to everyone. It is located on the portal www.zakupki.gov.ru in the “Information about contracts and agreements” section.

The information that makes up the register list of contracts includes, among others:

• customer data;
• information about the procurement method (auction, competition, etc.);
• information about the completion of the contract.

What applies to information confirming the reliability of a procurement participant?

Data that can confirm the integrity of the person participating in the competitive procurement are listed in Part 3 of Art. 37 of Law No. 44-FZ and represent information from the register list of contracts about the fulfillment by the participant in the competition of its obligations under previously concluded transactions in one of the options:

1. 3 or more contracts completed within a year prior to the date of submission of the tender in question. At the same time, under all contracts the participant should not be charged with penalties or penalties.
2. Consisting of 4 or more transactions executed within 24 months prior to the date of submission of the tender documents in question. In this case, 75% of contracts must be completed without penalties or similar sanctions being applied to the participant.
3. A set of 3 or more contracts executed within 36 months prior to the consideration of the specified competitive bid. At the same time, under all contracts, no penalties or penalties should be applied to the participant.

In all of the above cases, the cost of each contract must be at least 20% of the price offered by the competitor to conclude the contract in question.

The procedure for preparing information about the business reputation of a procurement participant

In order to confirm good faith when acting as a participant in competitive procurement, it is necessary to perform a number of sequential actions:

1. Find information about contracts concluded by the customer using the register of contracts. To do this, you need to go to the above address and select the “Completed” line in the contract status, then at the bottom of the page enter your Taxpayer Identification Number (TIN) in the appropriate column and generate a list of contracts completed by the time of the request for the specified participant.
2. From the list, select contracts that meet the requirements of Part 3 of Art. 37 of Law No. 44-FZ regarding the method of confirming the business reputation of a procurement participant, according to one of the options proposed by the legislator.
3. Generate documentation for the competition package. While defining in detail the content of data confirming the reliability of a tender participant, Law No. 44-FZ does not specify the form in which this information can be submitted for consideration.

Documents that confirm the integrity of the procurement participant (example of design, sample of filling out the table)

The best way to confirm the integrity of the procurement participant is to create a text file that will contain the required data:

1. Links to contracts selected in accordance with statutory requirements, indicating for each of them:
   • purchase number according to the register;
   • customer data;
   • contract registration data (number and date);
   • contract value;
   • execution date.
2. A link to a page with information about penalties imposed on the participant during the execution of the contract, which can be found in the contract card (for each of the selected transactions) on the “Information on the execution (termination) of the contract” tab. In this case, it is also necessary to take screenshots of pages with information about the absence or presence of penalties or penalties for the competitor for past transactions.

A sample of the information that should be included in the file might look like this:

As you can see, information confirming the integrity of the procurement participant is available for review. However, attention should be paid to their configuration and design in order to avoid rejection of the application for the competition.

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

Answer

The Department for Contract System Development of the Russian Ministry of Economic Development reviewed the appeal.

In accordance with Part 3 of Article 37 Federal Law dated April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ) information confirming the integrity of the procurement participant includes the information contained in the register of contracts concluded by customers, and confirming the execution by such participant within:

one year before the date of filing an application for participation in a competition or auction of three or more contracts (in this case, all contracts must be executed without the application of penalties (fines, penalties) to such participant);

two years before the date of filing an application for participation in a competition or auction of four or more contracts (in this case, at least seventy-five percent of the contracts must be executed without the application of penalties (fines, penalties) to such participant);

three years before the date of filing an application for participation in a competition or auction of three or more contracts (in this case, all contracts must be executed without the application of penalties (fines, penalties) to such participant).

Thus, the procurement participant, at its discretion, provides information about executed contracts under any of the three options provided for in Part 3 of Article 37 of Law No. 44-FZ.

Moreover, in accordance with Part 2 of Article 37 of Law N 44-FZ, if during an 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 the initial (maximum) price of the contract, the contract is concluded only after such participant provides security for the performance of the contract in the amount specified in Part 1 of Article 37 of Law N 44-FZ, or information confirming the good faith of such participant on the date of filing the application in accordance with Part 3 of Article 37 Law No. 44-FZ.

At the same time, please note that the clarifications of the authority have legal force state power, if this body is vested in accordance with the law Russian Federation special competence to issue clarifications on the application of the provisions of regulatory legal acts. In accordance with the Regulations on the Ministry of Economic Development of Russia, approved by Decree of the Government of the Russian Federation of June 5, 2008 N 437, the Ministry of Economic Development of Russia is not vested with the authority to clarify the legislation of the Russian Federation.

Document overview

In accordance with Law No. 44-FZ, the procurement participant must confirm his good faith. To do this, he provides information from the register of contracts confirming the execution by such a participant within a year before the date of filing an application for participation in the auction of three or more contracts executed without the application of sanctions to the participant; within two years before the date of application - four or more contracts (in this case, at least 75% of contracts must be executed without the application of sanctions); within three years before filing an application - three or more contracts executed without the application of sanctions.

The procurement participant, at its discretion, provides information about executed contracts under any of the three options indicated.

In addition, if during an auction the NMCC is 15 million rubles. or less and the procurement participant offers a price that is 25 percent or more below the NMCC, the contract is concluded only after such participant provides security for the execution of the contract.

A tender participant sooner or later faces dumping in government orders. The phenomenon of dumping itself has existed in the field of tenders for a very long time, almost since the inception of the institution. public procurement in Russia. The concept of “anti-dumping measures” in government orders appeared not so long ago, namely after the adoption of 44-FZ. In Law No. 94-FZ, which was in force before 44-FZ, there was no such concept. At the same time, in practice, of course, there was dumping in government orders, but the state made no attempt to combat this phenomenon legislatively. What is “dumping” in government orders today and what methods are used to combat this phenomenon? Let's try to figure it all out!

What is dumping in government orders?

The word dumping is borrowed from the English dumping, which means dumping (selling at artificially low prices). Most often, dumping prices are lower than market prices and even lower than production costs. To understand the nature of this phenomenon, let’s look at the reasons for using dumping in tenders:
1. Entry of a supplier into a market that has already been divided and there is no other way to get into it.
2. Receiving an order from a specific customer in order to begin cooperation with this customer for the purpose of upselling related services, works, as well as entering into larger contracts.
3. Obtaining new contracts and obtaining the necessary qualifications to participate in major competitions and requests for proposals.
4. Playing according to the rules established by the state, where the price indicator is the most important and in most cases decisive in government procurement.

What all these reasons have in common is that the supplier, working at a loss or zero, plans to make a profit or some kind of preferences in the future. In addition, we should not forget about Russian reality. At the moment, the government has created a public procurement system in which the supplier who offers the lowest price has a greater chance of winning. This is true both for auctions and for competitions and other procurement methods. In the vast majority of purchases, the significance coefficient is higher for the “Price” criterion than for other evaluation criteria.
Despite the fact that the state has created conditions for the development of dumping in government orders, it has also created anti-dumping measures to combat this phenomenon. Let's take a closer look at this tool.

Anti-dumping measures under 44 Federal Laws: what are they?

In 44-FZ, dumping is understood as a reduction in a participant’s price offer by 25% or more from the initial (maximum) contract price. That is, if the purchase limit is 1,000,000 rubles and the participant’s price offer is 750,000 rubles or more, then such an offer is recognized as dumping; if the supplier offers 750,001 rubles, then by law this is not dumping. Did you catch the fine line? One ruble or even one kopeck can influence whether the proposed price is recognized as dumping or not. Of course, this approach is formal and has an indirect relation to the market. The government procurement market has its own rules and these rules are 44-FZ. Let's look at anti-dumping measures under Federal Law 44 in more detail.

Two situations are possible:

Option No. 1 Price (NMC) of purchase is more than 15 million rubles.
In this case, according to Part 1 of Art. 37 44-FZ, if the price of the winner of the purchase is dumped and reduced by 25% or more, then the customer enters into a contract with such a participant only after the winner provides contract security with a coefficient of 1.5. But in this case, the amount must be no less than the amount of the advance (if the advance is provided for in the procurement documentation and in the draft contract). That is, the procurement participant, offering a price of 25% or lower than the price from the NMC, must be ready, in case of victory, to provide contract security of 1.5 higher. The participant can choose to provide security for the contract, either in the form of a bank guarantee or by transferring cash to the customer's account. Of course, most often the supplier chooses security in the form of a bank guarantee.
Option No. 2 Purchase price (NMC) less than 15 million rubles.
In this case, the procurement participant has a choice:
- provide contract security with a coefficient of 1.5 (as in the option above)
- provide as part of the application documents confirming the integrity of the supplier as of the date of application.

IMPORTANT: documents on good faith must be submitted as part of the application for the competition, that is, before the winner is determined. If you participate in an auction, such documents are provided along with the signed contract.

Information confirming the integrity of the supplier.

Let's consider what is meant by the “good faith” of the supplier” and supporting information.
The integrity of the supplier is understood as the confirmed fact of successful execution of contracts with government customers. That is, such contracts must be completed and information about such contracts must be contained in the register of contracts.
In addition, the conditions for the statute of limitations of such contracts, the number and the presence or absence of penalties must be met:
Option #1: 3 or more contracts within 1 year before the date of application, without penalties.
Option #2: 4 or more contracts within 2 years before the date of application, 75% of contracts without penalties.
Option #3: 3 or more contracts within 3 years before the date of application, without penalties.
At the same time, the price of one executed contract must be at least 20% of the participant’s price offer in the procurement procedure.

IMPORTANT: Please note that contracts confirming good faith must be included in the register of contracts. The fact that such a contract has been entered into the register must be verified independently. Contracts that are not included in the register of contracts cannot be used by participants as information confirming good faith. If the concluded contract is not in the register, contact the customer to clarify the reasons. Entering contracts into the register is the responsibility of the customer, who also bears administrative responsibility.

In practice, information confirming good faith can be presented by the supplier in the form of a certificate with a list of contracts that meet the requirements of Options No. 1, 2 or No. 3, which we discussed above. In such a certificate, the procurement participant can also indicate a link to entries in the register of contracts. To confirm the information, the supplier can attach printouts from the register of contracts, as well as copies of executed contracts and acts (the participant must provide a certificate, the rest is at his discretion).

In some cases, the customer may recognize information confirming good faith as unreliable if:
- the participant provided information on good faith on unfinished contracts
- the information provided on contracts confirming good faith is not in the register of contracts
- the requirements for the number of confirming contracts, terms, and absence of penalties have not been met (in accordance with options 1,2,3 discussed above)

This situation can have far-reaching consequences for the supplier with the inclusion of the participant in the register of unscrupulous suppliers in the event of participation in electronic competition. If the customer reveals false information in an open competition, the participant will get off with rejection of the application.

Anti-dumping measures under 44 Federal Laws and special cases.

Option #1: If the Customer holds a competition to carry out research, development or technological work, then the competition documentation may provide for various criteria for evaluating applications with a price reduction of 25% or more from the NMC and less than 25% from the NMC. For example, a participant in such a competition reduces the price by 25% or more, in this case the Customer lowers the significance coefficient for the price proposal and sets it equal not to 60%, but to 30%; for assessing qualifications, the coefficient will become, for example, not 40%, but 70% . Thus, the application of the “dumping” participant will be evaluated in such a way that it becomes unprofitable to offer a lower price, since the participant in this case is guaranteed to score fewer points. These figures are given as an example and it is natural that the customer must specify in the procurement documentation the significance factors and the conditions under which they will be applied.

Option #2: If the customer is purchasing life support goods (food, first aid, fuel, etc.), then the participant, in addition to 1.5 times the contract security (or information confirming good faith), must justify the reduction in the price offer by submitting:
- letter of guarantee from the manufacturer (with price and quantity of goods)
- documents that confirm the fact that the participant of the procedure has the goods
- other documents

Option #3. Anti-dumping measures in some cases cannot be applied at all, for example, in the case of the purchase of drugs that are included in the list of necessary and essential drugs (such a list is approved by the Government of the Russian Federation). But the price of medicines should be reduced by no more than 25% relative to the maximum selling price registered in accordance with the legislation of the Russian Federation.

Option #4: Anti-dumping measures are also not applied if the customer does not establish a requirement to ensure the execution of the contract. Establishing contract security requirements is the responsibility of the customer, and in some cases the customer has the right not to establish contract security. In this case, the supplier does not need to provide contract security, provide information confirming good faith as part of the application, or provide contract security with a coefficient of 1.5.

Was there dumping?

We have examined in detail the anti-dumping measures under Federal Law 44, examined in all nuances the integrity of the supplier, and ways to confirm integrity. Now let's ask ourselves how effective are these measures proposed by the authors of 44-FZ? The fact is that the starting point for determining dumping or non-dumping price is the initial maximum contract price (IMC). But, as NMC practice shows, the customer can formulate and justify absolutely any price, that is, this is not a market price. If the NMC is 1,000,000, this does not mean at all that the real cost of goods, works, services is the same, that is, 1,000,000 rubles. Naturally, the customer is interested in ensuring that the procurement procedure takes place. Therefore, it is beneficial for the customer to form an NMC above the actual cost. This situation with the formation of the NMC is also beneficial for the supplier, who, by participating in the procurement, has the opportunity to “reduce” the price and compete for the order. Thus, we can conclude that the supplier’s price reduced by 25% or more from the NMC may not always be truly dumping. The mechanism that is laid down in 44-FZ to combat dumping cannot be called effective and thoughtful.

But it should also be noted that the customer himself can create conditions for combating dumping, for example, by choosing a procurement procedure in which it is possible to set a significance coefficient at a price of 30%. As practice shows, the customer himself is not always interested in fighting dumping, since in today’s unstable realities the lowest contract price is the most important factor when choosing a supplier.

It should also be understood that too low a price may cause poor quality of the goods, works and services supplied. Customers and suppliers should try to look for and find a middle ground in this difficult issue.

Conscientiousness under 44-FZ is a characteristic of a procurement participant, which allows the customer to decide to conclude a government contract with him, even in cases where the participant significantly reduces its cost relative to the NMCC. Demonstrated integrity indicates that the potential contractor is reliable and has the necessary experience.

When to prove good faith

Federal Law No. 44-FZ establishes several methods that government customers use when preparing a purchase. Each of these methods is aimed at establishing an adequate price for the purchased product, work or service, which corresponds to market conditions. If during the procedure a potential counterparty significantly, by 25% or more, reduces the declared NMCC, this raises doubts about its reliability.

The legislator requires the government customer to apply anti-dumping measures in such situations: if the NMTsK exceeds 15 million rubles, the procurement participant is obliged to provide contract security that is one and a half times the amount established in the procurement documentation. If the NMCC does not exceed 15 million rubles, the participant has a choice:

• provide the usual security, while simultaneously proving the good faith of the procurement participant under 44-FZ;
• provide one and a half security for the fulfillment of their obligations under a future transaction with the customer.

Information confirming the integrity of the procurement participant 44-FZ must be requested by the customer in the event of a significant reduction in the purchase price during: competitive procedures, including electronic form and auctions.

What is proof of good faith?

How to confirm the supplier’s good faith under 44-FZ is explained in Part 3 of Art. 37 44-FZ. The contractor is recognized as reliable if the register of contracts contains information that he concluded and performed without the application of penalties to him:

• at least three government contracts over the past year;
• at least four government contracts over the last two years - with this option, it is permissible for the contractor to be subject to penalties for a quarter of the contracts;
• at least three government contracts in the last three years.

The price of at least one of the transactions executed by the contractor with government customers must be at least 20% of that offered by the contractor under the current procedure.

If a paper competition is held, information about the experience and performance of a potential contractor is submitted to the customer in a single package of documents with an application for participation. If we are talking about an electronic competition or auction, information is provided to the customer simultaneously with the signing of the contract.

How to issue a confirmation of good faith

When talking about justifying the reliability of the contractor, the legislator points to the provision of information contained in the register of contracts. This is a publicly available information source. The supplier does not require any special documents; it is only necessary to summarize and provide the customer with information from the register.

The form of such a generalization is not established by law: it can be submitted in the form of a declaration, guarantee or information letter in any form.

Whatever document the contractor documents information about his experience and reliability, it should indicate:

• register number of the executed contract;
• name and tax identification number of the customer;
• price;
• item;
• term of conclusion and period of fulfillment of obligations;
• an indication of the penalties imposed, if any.

As a sample confirmation of good faith, you can use the information letter form.

The information provided by the procurement participant is verified by the customer. If during the inspection the customer reveals that the information provided is unreliable, in the case of a paper tender the participant’s application will be rejected, and if we are talking about an electronic tender or auction, the contract will not be signed, and the contractor will be recognized as having evaded the conclusion.

Upcoming changes in legislation

The President has signed a bill that significantly changes 44-FZ, in particular, the procedure for applying anti-dumping measures and rules for confirming good faith:

1. The basis for the application of anti-dumping measures will soon be not only a reduction of 25% or more in the total purchase price, but also units individual goods, works, services.
2. The number of options for procurement participants to prove their reliability will be significantly reduced: all contractors, without exception, will be required to provide information on at least three contracts executed over the past three years.
3. For contracts concluded as a result of procedures with a significant reduction in price, advance payment will become impossible.

Explanations on the topic