When preparing the next purchase, an important part of the work of any state customer is the justification of the NMCC. Specialists study offers on the market and set the average cost value in the tender notice. Participants in the auction reduce it, competing for the right to conclude a contract. However, if the supplier offers a price less than 75% of the original one, this raises suspicion: can high-quality products be so much cheaper than the market average? In order not to be subject to anti-dumping measures and still sign an agreement, such a supplier must confirm his good faith.

To do this, it is not enough to simply be absent from the RNP list. You must provide:

• Standard bank collateral plus confirmation of the supplier’s integrity in the form of an extract from the register of contracts. This is a list on the EIS website, into which customers, in accordance with 44-FZ, enter the data of companies that have fully fulfilled their obligations, and therefore are trustworthy.
• If there are no completed contracts, it is necessary to transfer security in the amount of one and a half times to the customer’s account.
• If the NMCC of the transaction is more than 15 million rubles, the security must exceed one and a half times the amount.
• In 2018, if the object of purchase is GWS necessary for normal life support (fuel, food, medicine), in addition to one of the above points, the participant must provide evidence of the actual availability of such goods at the specified price (for example, letter of guarantee from the manufacturer).

Requirements for the number of executed contracts

Proof of the company’s positive business reputation are transactions entered by government customers into the register of contracts in the status “Execution completed/discontinued.” There should be several of them:

• more than 3 in the last year or 3 years if all contracts were executed without penalties;
• more than 4 in the last 2 years, if 75% are completed without penalties.

The object of purchase for these transactions is not important, however, very small contracts are not taken into account: at least one of them must be at least 20% of the price offered by the participant in the competition, for which confirmation of good faith is required.

When to submit documents on the good faith of the supplier

In 2018, a letter of trustworthiness must be provided to the customer:

• As part of an application for participation in offline procedures in the format of competitions: closed, open, two-stage, with limited participation. If the commission finds incorrect information, it simply rejects the application.
• Together with a signed contract for online competitions and auctions. In this case, the discovery of unreliable information threatens the winner with evasion and being included in the RNP list.

There are no approved forms for such a document. It can be compiled in free form if it contains the information described in the article. To make sure you don't miss anything, use our sample.

Fig.1 Sample confirmation letter

Information about the integrity of a particular organization can be found on the Synapse website in the section Verification of counterparties. On the page of each legal entity you will find a note indicating whether it is listed in the RNP (or was previously listed in it).

In part 3 of Art. 37 Federal Law dated 04/05/2013 N 44-FZ "On contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as Law No. 44-FZ) it is stated that contracts confirming the good faith of the supplier must be executed without the application of penalties (fines, penalties) to such participant. The supplier declares contracts to confirm their good faith, which were not fulfilled in full (terminated by mutual agreement) without the application of fines (penalties).
Can such contracts confirm the good faith of the supplier in accordance with the requirements of Part 3 of Art. 37 of Law N 44-FZ?

On this issue we take the following position:
Information confirming the fulfillment by a procurement participant of contracts terminated by agreement of the parties without the application of liability measures to the procurement participant is information confirming the good faith of such participant. However, it is possible that the procurement participant will have to defend his case in court.

Justification for the position:
As follows from the 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 Law N 44-FZ), in cases provided for by these norms, the contract is concluded only after the participant provides security for the performance of the contract in established amount or information confirming the good faith of such participant as of the date of filing the application in accordance with Part 3 of this article.
According to Law N 44-FZ, information confirming the integrity of a procurement participant includes information contained in the register of contracts concluded by customers and confirming the execution of contracts by such participant in accordance with any of the three options provided for by this norm, at its discretion (see in connection with this clarification from the Ministry of Economic Development of the Russian Federation in letters dated December 7, 2016 N D28i-3260, dated November 8, 2016 N D28i-2911). In these cases, the price of one of the contracts must be no less than 20% of the price at which the procurement participant proposed to conclude a contract in accordance with Law No. 44-FZ. The specified information must be provided by the auction participant when sending the signed draft contract to the customer (Law No. 44-FZ).
The norm of Law No. 44-FZ does not allow us to determine whether information about a contract executed by the counterparty in good faith (without applying penalties), but in an amount less than originally provided for by the contract terminated by agreement of the parties, can be considered appropriate for the purposes of this article. Such contracts take place in cases where the customer, for objective reasons, loses the need for the full volume of goods, works, services originally provided for by the contract and procurement documentation - in these cases, the contract is terminated by mutual agreement of the parties (for more details on this, see, for example, the answer legal consulting service to Question: A contract has been concluded for the supply of food products. The customer wants to terminate it and enter into a new contract for a smaller volume with the same supplier at the same prices. Is it possible to terminate the contract without paying for the already delivered batch of products?)
As follows from Law N 44-FZ, the execution of a contract includes a set of measures listed in this part, including the acceptance of goods, works and services, their payment, the application of liability measures implemented after the conclusion of the contract and aimed at achieving the goals of the procurement through interaction between the customer and the supplier (contractor, performer) in accordance with civil law. Moreover, by virtue of the above norm, the execution of a contract implies acceptance and payment not only of the contract as a whole, but also of individual stages of its execution (clauses 1, 2 of this norm).
In accordance with the Civil Code of the Russian Federation (we recall that by virtue of Law No. 44-FZ, the legislation on the contract system is based, among other things, on the provisions of the Civil Code of the Russian Federation), the obligation is terminated by its proper fulfillment. Moreover, according to the Civil Code of the Russian Federation, in the event of a change or termination of a contract, obligations are considered changed or terminated from the moment the parties agree to change or terminate the contract, unless otherwise follows from the agreement or the nature of the change in the contract, and in the event of a change or termination of the contract in judicial procedure- from the moment the court decision to amend or terminate the contract comes into force. From the above it follows that modification or termination of the contract (including refusal to perform) is possible only in relation to existing (unfulfilled) obligations. At the same time, it is obvious that it is impossible to change or terminate a contract, the obligations under which have been fulfilled in full.
The logic of these arguments underlies the conclusions of that law enforcement practice, which does not recognize as information confirming the good faith of the counterparty, information about contracts that during execution were terminated by agreement of the parties (as due to the fact that the customer no longer needed the volume of goods supplied , work performed, which were specified when concluding the contract, and for other reasons). Thus, in the decision of the Federal Antimonopoly Service for St. Petersburg dated June 24, 2016 N 44-2528/16, the supervisory authority did not recognize information about contracts terminated by agreement of the parties as confirming the good faith of the participant, despite the fact that for such contracts in a single information system(hereinafter referred to as the UIS) there were no complete certificates of work performed; the work performed under these contracts was not fully paid, and in the UIS these contracts have the status "Execution terminated" (see a similar conclusion in the decision of the OFAS for the Murmansk region dated September 26, 2016 N 06-09 / RNP-51-64).
At the same time, we note that from the above general rules of civil law on the fulfillment of obligations and the execution of a contract, it does not follow that the obligations of a contract terminated by agreement of the parties are unfulfilled. The agreement by the parties on the conditions for the fulfillment of the obligation is not complete, but in a certain part of it does not contradict the norms of the Russian Federation on the fulfillment of obligations (Civil Code of the Russian Federation) and corresponds to the principle of freedom of the parties in determining the terms of the agreement (Civil Code of the Russian Federation). Execution of the contract for the purposes of N 44-FZ, as already noted, also implies acceptance and payment for individual stages of contract execution (Law N 44-FZ).
It seems to us that establishing a requirement for the purposes of Law No. 44-FZ to provide exclusively contracts executed in the initially agreed upon volumes contradicts the meaning of this norm. After all, part and Law No. 44-FZ are talking about confirming the good faith of the procurement participant, but termination of the contract by agreement of the parties is obviously not evidence of bad faith by one of them. Moreover, according to general rule Civil Code of the Russian Federation, the good faith of participants in civil legal relations and the reasonableness of their actions are assumed until proven otherwise (paragraphs three and four of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I of Part One Russian Federation"). Accordingly, the absence of facts of application of penalties (fines, penalties) under contracts, even if terminated early, testifies in favor of the good faith of the supplier (contractor, performer).
We also note that the requirement to provide only contracts executed in the initially agreed volumes limits competition, since it limits the number of bidders capable of reducing the contract price by more than 25%, only to those who, within the periods specified in Law N 44-FZ concluded and executed contracts to the full extent originally agreed upon.
Such a formalized approach may affect subsequent decisions of procurement participants under those contracts, the objective need to terminate which periodically arises from customers. Contract executors - potential participants in subsequent purchases may avoid termination by agreement of the parties and insist on meeting the customer's actually absent need, which, in turn, will contradict such procurement principles as the principle of responsibility for the effectiveness of meeting state and municipal needs, the principle of efficient procurement ( , Law N 44-FZ), and in addition to the principles of good faith in the fulfillment of obligations in civil legal relations (, Civil Code of the Russian Federation).
The above arguments, in our opinion, testify in favor of the fact that information confirming the good faith of a procurement participant also includes information confirming the performance by such a participant of contracts that were terminated by agreement of the parties.
In conclusion, we note that what has been said is our expert opinion. Unfortunately, judicial practice We were unable to find any information on this issue. For an official clarification on this issue, we recommend that you contact the Ministry of Economic Development of Russia or the Federal Antimonopoly Service of Russia. It is also possible that the procurement participant will have to defend his case in court.

Prepared answer:
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.

If the price during bidding decreases by more than 25 percent, the winning bidder must prove his/her good faith. These are called anti-dumping measures. In the article, read about how to prove good faith under 44-FZ.

Now the competition in the market is very strong, and in the government order market there is even more competition. Tender participants fight until the last minute. And sometimes they reduce the price to a minimum. At the same time, customers begin to doubt that they can even receive the product or service they are purchasing.

Therefore, Federal Law 44 has a requirement for such tender participants. If during bidding the price decreases by more than 25% of the NMTS, anti-dumping measures are applied to such participants. Or simply put, the participant must prove his good faith in the tender. Moreover, it is not only that the participant is absent from the RNP.

When to prove your good faith in a tender under 44-FZ

In tenders where participants reduce the price by more than 25%, they must prove their good faith. As soon as the bidding is completed and the customer has determined the winner of the tender, the countdown of 10 days begins for the preparation and signing of the contract. Before the participant signs the contract, he must provide the customer with evidence of good faith.

All changes in procurement for tender participants 2019-2020

During the webinar you will learn:
Which changes for tenderers have already entered into force by the end of 2019, and which will come into effect from 2020;
What changes for participants in securing the application and contract;
What is warranty coverage?
How and why to register with ERUZ;
What has changed in advance payments under government contracts;
What you need to know about customer plans for 2020.

Moreover, if the participant - the winner of the tender does not provide the customer with his good faith, he can be included in the RNP. Therefore, it is worthwhile to carefully approach this issue, monitor the deadlines and prepare a letter to the customer in time and send the contract security.

How to prove your integrity

In case of anti-dumping measures, the tenderer must send to the customer the contract security in 1.5 times more than it was originally designated. And also provide documents that will confirm that the participant has previously executed contracts without fines and penalties. Moreover, contracts must be for the last 3 years. And the total amount of contracts should be 20% greater than the NMCC of this tender.

But there is a small concession for participants regarding the subject of contracts. Those contracts that the participant will provide may be for different subjects of contracts. The most important thing is that at the time of application they have already been executed and in the EIS they were in the status of “execution completed”.

It will be important that if the advance payment was indicated in the draft contract, then the security will be paid not 1.5 times more than the amount of the NMTsK, but will be the amount of the advance payment. In this case, the advance payment itself will not be paid by the customer during anti-dumping. This condition must be specified in the draft contract.

How to prove your integrity to save more money in your account

If a tender participant dumps, he is obliged to provide a contract security increased by one and a half times - this is a protective anti-dumping measure for customers. But if the contract price is below 15 million rubles. the applicant has the right to pay standard security in the amount according to the notice and additionally confirm his good faith.
Read how participants can confirm their good faith in order to save on collateral and keep more free money in their accounts, and what conditions information from the contract register must meet in order for the customer to accept it.

How is confirmation of good faith completed?

The form of confirmation of good faith is not established either by 44-FZ or by-laws regulations. The tenderer may provide information in the form of a declaration, letter of guarantee or simple letter– notifications. The main thing is that such a form is signed by the head of the organization with a seal.

All information that the tenderer provides to the customer is in public access in the EIS. The bidder simply needs to collect everything on one sheet.

What to include in a letter of good faith

How the tenderer formats this letter is not important. It is important what data he provides in his letter. It is necessary to indicate in the letter of good faith registration numbers contracts that were completed within 3 years. Information about customers with whom contracts were concluded (their names and tax identification number). The prices of each of the contracts, and perhaps it is better to even sum them up and show by this that the total amount is 20% more than the NMCC of this tender. You also need to indicate the subjects of the executed contracts and the terms of conclusion and execution.

Important

The information must match the information that is in the register of EIS contracts. If the customer sees a discrepancy in the information, he will recognize the tender participant as having evaded concluding the contract and will forward it to the RNP.

It is best to provide all information in tabular form. It is not worth sending the customer copies of the contracts themselves, invoices, and invoices. The customer will check this information himself in the Unified Information System.

What are the exceptions to the rules?

An exception to the rules in anti-dumping measures will be tenders for the provision of emergency medical care, medicines, fuel and food. In such tenders, if the participant reduces by more than 25%, he will need to provide a letter of guarantee from the manufacturer or some other documents that can confirm the fulfillment of the contract at the price offered by the participant.

Also, anti-dumping is not used when there is no contract security in the tender conditions.

Confirmation of good faith is one of the anti-dumping measures provided for by Law 44-FZ. These measures are designed to prevent the intentional lowering of the price in the auction in order to eliminate competitors and win. We will tell you further how to confirm good faith and when it is necessary.

When to prove good faith

Anti-dumping measures are discussed in Art. 37 of Law 44-FZ. These are additional steps that the winner who has reduced the starting price by 25% or more must go through before signing the contract. Thus, tender organizers are fighting against deliberate price reductions.

Which anti-dumping measures apply depends on the contract value stated in the documentation. If it is more than 15 million rubles, the participant must provide security increased by 1.5 times. If it is less than 15 million, the winner is required to confirm good faith.

See the documentation for what measures are used in a specific procedure. Please note that they are only used in competitions and auctions.

How to prove good faith

The participant must provide at least 3 contracts within 3 recent years. There should be no fines or penalties for each of them. And the price of each must be 20% of the initial contract price in this procedure for which an application is submitted. Provide copies of these contracts with all attachments, as well as a cover letter.

How to prove your integrity to save more money in your account

If a tender participant dumps, he is obliged to provide contract security increased by one and a half times - this is a protective anti-dumping measure for customers. But if the contract price is below 15 million rubles. the applicant has the right to provide standard security in the amount according to the notice and additionally confirm his good faith. Read how participants can confirm their good faith in order to save on collateral and keep more free money in their accounts, and what conditions information from the contract register must meet in order for the customer to accept it.

Exactly how to submit integrity information depends on the type of procurement procedure. For example, in any type of competition they must be included directly in the application. If there is an auction, provide the data along with the draft contract when you sign it on the ETP.

It is not necessary to retrieve contracts from the archive; it is enough to know the number of the documents that you want to present as evidence of good faith. All information about them can be found in the register of contracts.

Please note: if the subject of the contract is the goods necessary for the normal operation of the ambulance (part 9 of article 37 of Law 44-FZ), the procedure changes slightly. The participant will have to justify his price, that is, explain why he offered such a price. This may be a letter of guarantee from the manufacturer of the goods, which confirms the price of the goods, or papers that prove that the supplier has the products in stock (acceptance certificates, sales contracts, etc.). This once again proves that he is able to fulfill the contract at the stated price.

Letter of good faith for the customer

In the letter, the winner briefly tells the customer about which contracts confirm his good faith. We recommend formatting it in the form of a table, which can be broken down by year. Include the following columns:

• contract number in the register;
• name of the counterparty (with whom the contract was concluded);
• subject of contract;
• date of conclusion;
• period of execution;
• contract price;
• penalties, penalties, fines, if they were assessed.

If you submitted an application with a price that is 25% different from the initial one, it is better to immediately prepare executed contracts, and not do this before signing the contract itself. You risk not making it in time and ending up in the RNP.

What not to do

In order to avoid becoming a draft dodger (a winner who avoided concluding a contract), there is no need to repeat the experience of a participant in an auction for the supply of household goods. The starting price was 169,800 rubles. The winner offered 97,635 rubles. Since the difference was more than 25%, it was necessary to confirm good faith, which the participant did.

However, upon inspection, the auction organizer discovered that contracts with register entries No. 1434509333118000180 and No. 2434601121119000439 are in the execution stage. This means that the information provided by the participant does not confirm good faith.

He was recognized as a draft dodger, after which the auction organizer turned to the FAS with a request to include him in the register of unscrupulous suppliers. At a meeting of the OFAS commission, it turned out that the contracts were sent by mistake (as the participant himself stated). As a result, they decided not to include him in the RNP. Nevertheless, he lost the tender.

Attached files

• Integrity Information Letter.docx

The integrity of the procurement participant under 44-FZ is one of the anti-dumping measures in the contract system. The participant shows information from the register of contracts about previously fulfilled obligations, so as not to increase the security. We will figure out how to confirm good faith, and also provide a sample confirmation of good faith for downloading.

What is good faith according to 44-FZ

When the offer of the winner of an auction or competition is 25% or more cheaper than the NMCC, anti-dumping measures are used. This is done in order to prevent competition from being limited by excessively understating the cost of products, as well as to protect customers and, as a consequence, end consumers from poor-quality procurement results.

If the initial tender price is less than 15 million rubles. (inclusive), then the supplier has a choice. He can provide the customer with contract security of 1.5 times the amount or regular security plus documents showing his business reputation in the contract system.

From 01/01/2019 with an initial maximum contract price of up to 15 million rubles. the interpretation of Article 37 of 44-FZ is no longer ambiguous. According to the new rules, such measures are applied as follows: this is either ensuring the execution of a contract in one and a half times the amount, or ensuring its execution in a “standard” one-time amount along with information about good faith.

Only “good faith” without money or a bank guarantee as security for the execution of a government contract is no longer enough!

On July 1, 2018, changes to 44-FZ came into force. In this regard, it is specified that anti-dumping measures will be in effect when:

• open competition, competition with limited participation;

They also apply to new electronic procurement:

• open competition in electronic form;
• competition with limited participation in electronic form;
• two-stage competition in electronic form.

In this case, the procedure for providing it will be similar electronic auction By current legislation. That is, information about good faith will be provided by the winner when sending the signed draft contract to the customer.

How to confirm the integrity of the supplier under 44-FZ

The necessary information is contained in the Unified Information System, namely in the register of contracts that were previously concluded with government customers. Moreover, all transactions must be completely closed, that is, be in the status “Execution completed” or “Execution terminated”.

Information confirming the good faith of the procurement participant 44-FZ may be as follows (optional):

1. Three or more completed contracts within one year prior to the date of application. No penalties.
2. Four or more completed contracts within two years prior to the application submission date. 75% of which are without penalties.
3. Three or more completed contracts within three years prior to the date of application. No penalties.

It is important to take into account that in the above options, the amount for at least one of the documents should not be lower than 20% of the price offered by the participant in the current auction. Moreover, the subject of completed transactions is not specified by law, that is, it can be anything; the participant is not required to confirm the fact of execution of similar government contracts.