The fight against dumping in public procurement has appeared relatively recently, and, as current practice shows, not all participants in the contract scheme know how to apply certain provisions of certain legal norms. In particular, many entrepreneurs are not aware of what constitutes an anti-dumping measure, how it is used and for what reasons.
What it is?
Dumping in economic theory is the sale of goods at too low prices that were artificially lowered. An anti-dumping measure may be applied if the indicated value is significantly lower than the market value, but at the same time has no economic justification. In some situations, such understatements achieve that the final cost is lower than the cost of a particular service or product.
In state tenders, an anti-dumping measure can be used if the supplier wants to enter the procurement market for the country's needs and crowd out competitors by dishonest methods. In particular, it is used if, when concluding a contract with a supplier, he underestimates the price too much by taking part in a tender.
The dumping problem has become widespread during open tenders in electronic format. Suppliers from all regions of Russia were given the opportunity to participate in tenders, as a result of which they began to offer prices lower than market prices. Sometimes there were situations when the participants of the NMC dropped to zero, and then a tender was held to raise the price.
What are they needed for?
An anti-dumping measure is used because the consequences of artificially lower prices can be quite serious, namely:
- Contractual obligations are ultimately not fulfilled. Quite often, it happens that after an unreasonable decrease in the NMC and the drafting of a contract, suppliers began to realize that they did not have the opportunity to provide services or deliver goods at the originally proposed cost.
- The performance of any work, the delivery of goods or the provision of services does not correspond to the declared quality. This primarily refers to tenders for the supply of various food products, after which the winners of the competition began to supply expired or low-quality goods for the sole purpose of meeting the proposed price.
- The contract is terminated in court.
- You have to spend time on a second tender.
The reform of the current legislation in the field of municipal and state tenders is designed to solve this problem. In particular, anti-dumping measures under 44-FZ were introduced, which are used in various competitions and auctions. This norm is enshrined in the 37th article of the current law on the contract system. Anti-dumping measures under 44- cannot be used during procurement by any other means, and in this case, suppliers have the right to write a complaint about such actions on the part of the customer.
What are they like?
If the NMC of the contract is less than 15 million rubles, but the bidder offers a price that is lower than the declared more than 25%, then in this case he must draw up security for the execution of this contract, which should be one and a half times the size indicated in the documentation, or provide any information that could confirm his good faith.
If the NMC exceeds this amount, and the participant offers a price more than 25% lower than declared, then, according to federal law 44-FZ, in this case no information about his good faith is required, and he will have to provide security in any case.
What is this information?
Quite often, bidders cannot provide collateral, and therefore, the law provides for the possibility of confirming good faith. Such information may include various information, which includes a register of drawn up contracts, as well as confirming that this company is fulfilling its obligations under the contracts. In particular, Federal Law 44-FZ provides for the possibility of providing the following information:
- During the year prior to the filing of the application for participation in the tender, the company completed three or more contracts, and at the same time, they were all executed without the use of any penalties in relation to the participant.
- If the supplier did not take part in municipal or state procurements before that during the year prior to the filing of the application, he can provide any information that could confirm his fulfillment of obligations under four or more contracts over two years, but more 75% of them should be executed without penalties and fines.
- During the three years prior to the filing of the application, the supplier executed three or more contracts, and no fines or penalties were applied to him.
The only thing worth noting is that in such situations the cost of each of the contracts should be at least 20% of the one for which the supplier suggests concluding a contract. For example, if the contract is concluded at a price of 100 million rubles, then in this case the participant must be provided with information that in the previous period he had executed a certain number of contracts, and at least one of them had a value of at least 20 million.
But, as mentioned above, if the NMC is more than 15 million rubles, and at the same time the participant offers the cost of concluding a contract 25% lower than declared, he will lose the opportunity to use the alternative in the form of confirmation of his good faith with any information, and in any case it will be necessary provide increased enforcement of their obligations.
How to provide this information?
The procurement commission may reject any application if the information received is invalidated. The decision to reject any applications must be recorded in the protocol indicating specific reasons, after which the information is communicated to the procurement participant who sent this application, for a maximum of one business day following the date of signing the protocol.
If the participant did not indicate any information during the preparation of the tender that could confirm his good faith, then in this case the contract with him is drawn up only after the security is provided. Today, such anti-dumping measures in the Customs Union are used in almost any procurement options.
Many customers do not know whether it is necessary to prescribe in the auction documentation that if the supplier wants to reduce the contract value by more than 25%, it is incumbent on him to provide justification for such a price. In fact, this obligation is imposed on the supplier in any case in accordance with applicable law, and if the customer did not even indicate the relevant requirements in the tender documentation, he retains the right to demand justification and calculation of the indicated cost. He may also require the necessary documents or reject the application of any participant in case of their absence. But in any case, in order to exclude any disputes, it is best to foresee everything in advance and indicate in the documentation the condition and cases of providing justifications.
Competition
If the company intends to take part in the tender, then in this case it must provide all relevant information in the process of preparing the application. In practice, it looks like that the supplier, after reviewing all the tender documentation and calculating that he can offer a price lower than the starting one, for example, by 30%, must, as part of the tender application, provide a certain package of documents that could confirm his good faith in accordance with the list approved after the introduction of anti-dumping measures.
Upon receipt of the application, the customer must verify the reliability of the information on the integrity of the participant through the registry of contracts, that is, see:
- the fact of the presence of certain contracts;
- compliance of the value with the specified value;
- absence of any penalties, fines and other penalties assigned due to improper performance of obligations under the drawn up contract.
Auction
In case of participation in the auction, the company must provide data confirming its good faith in the process of sending the customer to sign the draft contract.
The use of special protective anti-dumping measures provides for the provision of enforcement of the contract by the participant with whom the contract is concluded until its conclusion. If the supplier does not fulfill this requirement, it is recorded as evading the drafting of the contract, after which the evasion is formalized in an official protocol posted in a single information system.
It should be noted that if the information provided by the participant is recognized by the commission as unreliable, then in this case they cannot conclude a contract, and he, again, is recognized as evading the drafting of the contract. In such a situation, the decision made by the tender commission must also be executed in the appropriate protocol, placed in a single information system and communicated to each participant within one business day following the date of signing the protocol.
Application features
In accordance with Art. 37, anti-dumping measures are applied in a special manner in the process of conducting special procurements. In particular, they include the organization of various competitions in which they recruit performers for experimental design, technological or scientific research, as well as for the provision of various consultations.
When conducting such tenders, the customer has the right to indicate in the tender documentation various values of the criteria for evaluating applications, if the participant wants to submit an application with a cost that is lower than the declared up to 25%.
If the proposal for the cost is lower than the NMC of the contract by more than 25%, then the application of anti-dumping measures is carried out as follows: the significance of this criterion is set equal to 10% of the total value of all the specified evaluation criteria.
If the main subject of the contract, for the conclusion of which a tender or auction is being held, is the supply of any goods necessary for normal life support, then in this case, the participant offering the contract value is more than 25% lower than the original one must provide the customer with justification for such prices. In this case, anti-dumping and countervailing measures help to significantly improve the quality of the performance of their obligations by the participants, “filter” unscrupulous performers, since to submit such an application it is necessary to provide:
- a letter of guarantee from the manufacturer, in which the exact cost and quantity of the delivered products will be indicated;
- documents that confirm that the procurement participant has the indicated goods in stock;
- other documents and calculations, which could serve as confirmation of the ability of the procurement participant to ensure the supply of goods at the proposed price.
Features of the types of bidding
Taking part in the competition, the applicant must provide justification for participating in it as part of his application.
If the procurement commission in the process of evaluating the application recognizes that the availability of this document is necessary but has not been submitted, the application may be rejected. The commission’s decision in this case should be standardly recorded in the protocol of evaluation and consideration of applications for participation in tenders or consideration of a single application.
During the auction, a guarantee letter or a package of documents is provided that confirms the availability of a particular product. All this documentation should be provided to the customer in the process of sending the already signed draft contract. If a participant does not comply with these requirements, that is, does not send the necessary package of securities, then in this case anti-dumping measures are applied to him in accordance with Law 44-FZ. At the same time, he is recognized as evading the drafting of the contract.
Case study
The winner of the tender avoids drawing up a contract, as a result of which the customer suggested that he enter into that participant whose application received the second place, and he agreed, but the price he proposed was 25% lower than the initial one. Thus, appropriate measures should be applied to this participant, namely: he must draw up increased security or provide information that could confirm his good faith.
The participant did not comply with these requirements, as a result of which the antimonopoly authority included the company in the register of unscrupulous suppliers.
After applying to the arbitration court, the decision of the antimonopoly body was unchanged. If the participant, who won the second place in the competition, agreed to conclude a contract, he is considered the winner, but if he does not comply with the requirements of article 37 of the relevant law, such a winner shall be recognized as evading the conclusion of the contract.
When can they not be used?
Starting from June 2014, in accordance with the current legislation, there are several situations in which special protective antidumping and countervailing measures may not be applied. This occurs in cases where:
- The procurement of drugs is included in the list of the most important and vital drugs, which was previously approved by the government of the Russian Federation.
- The procurement participant, with whom the contract is concluded, offers the cost of all drugs purchased, reducing it by more than 25% in comparison with their registered maximum selling price established in accordance with the current legislation related to the circulation of drugs.
Thus, an agreement on anti-dumping measures may provide for their removal from a participant if he fulfills the above requirements.