What is an anti-dumping measure? Anti-dumping measures in the Law 44 of the RF Federal Law

The fight against dumping in public procurement has appeared relatively recently, and, as the current practice shows, not all participants in the contractual scheme are aware of 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, which have been understated artificially. The anti-dumping measure can be applied if the indicated cost is significantly lower than the market price, but does not have any 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 needs of the country and expel competitors in unfair ways. In particular, it is used if, when concluding a contract with a supplier, it underestimates the price too much by taking part in the tender.

The problem of dumping has significantly spread during the open tenders in electronic format. Suppliers from all regions of Russia were given the opportunity to participate in the auction, as a result of which they began to offer prices below market prices. Sometimes there were also such 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?

Anti-dumping measure is used for the reason that the consequences of artificial understating of the price can be quite serious, namely:

• Obligations under the made contracts finally are not executed. Quite often it happens that after an unreasonable decline in the NMC and the preparation of the contract, providers began to understand that they can not provide services or deliver goods at the initially proposed cost.
• The performance of any work, delivery of goods or services does not comply with the declared quality. First of all, this refers to the tenders for the supply of various food products, after which the winners of the competition began to deliver an overdue or low-quality goods with the sole purpose of meeting the proposed price.
• The contract is terminated in court.
• We have to spend time on holding a second tender.

The introduction of the reform of the current legislation in the sphere of municipal and state tenders is designed to solve this problem. In particular, anti-dumping measures were implemented on 44-FZ, which are used in various competitions and auctions. This rule is fixed in the 37th article of the current law on the contract system. Anti-dumping measures for 44-FZ can not be used in 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 if the bidder offers a value that is lower than the declared value by more than 25%, then in that case he must formalize the security for the performance of this contract, which should be one and a half times the size specified in the documentation, Or to produce any information that could confirm his conscientiousness.

If the NMC exceeds this amount, and the participant offers a price more than 25% lower than the declared price, then, as Federal Law No. 44-FZ states, in that case no information about its good faith is required, and he will have to provide security in any case.

What kind of information is this?

Quite often, bidders can not provide security, which means that the law provides for the possibility of confirming good faith. Such information may include various information, which includes a register of drafted contracts, as well as confirming that this company fulfills the obligations assumed under the contracts. In particular, the federal law 44-FZ provides for the possibility of providing the following information:

• During the year before the application for participation in the tender was filed, the company executed three or more contracts, and all of them were executed without the use of any penalties against the participant.
• If the supplier has not previously participated in municipal or public procurement for a year before the application is submitted, it can provide any information that could confirm the fulfillment of its obligations under four or more contracts for two years, but at the same time more 75% of them must be executed without applying penalties and fines to it.
• For three years before the application was filed, the supplier executed three or more contracts, and no fines or penalties were applied to it.

The only thing worth noting is that in such situations, the value of each contract must be at least 20% of the price at which the supplier proposes to conclude the contract. For example, if the contract is concluded at a price of 100 million rubles, then the participant must be provided with information that during the previous period he had fulfilled a certain number of contracts, and at least one of them had a cost of at least 20 million.

But, as mentioned above, if the NMC is more than 15 million rubles, while the participant offers the cost of contracting 25% lower than the declared one, he has no opportunity to use the alternative in the form of confirmation of his conscientiousness with any information, and in any case it will be necessary Provide increased security for the performance of its 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 specifying the specific reasons, after which the information is communicated to the bidder who sent this application within a maximum of one working day following the date of signing the protocol.

If, however, the participant did not specify any information during the compilation of the competitive application that could confirm its good faith, then the contract is drawn up only after the provided security. Today, such anti-dumping measures in the Customs Union are used in almost all types of procurement.

Many customers are not aware of the need to prescribe in the auction documentation that if the supplier wants to reduce the value of the contract by more than 25%, it is incumbent on him to provide a justification for such a price. In fact, this duty is imposed on the supplier in any case in accordance with the current legislation, and if the customer did not even indicate the relevant requirements in the bidding documents, then he has the right to demand justification and calculation of this value. Also he can demand 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 provide everything in advance and indicate in the documentation the condition and cases of providing justifications.

Competition

If the company is going to participate in the competition, then in that case it must provide all relevant information in the process of drawing up the application. In practice, it looks like the supplier, after acquainting himself with all the tender documentation and calculating that he can offer a price lower than the starting price, for example, by 30%, must present in the competitive bid a certain package of documents that could confirm his good faith in accordance With a list approved after the introduction of anti-dumping measures.

When receiving an application, the customer must verify the reliability of information on the integrity of the participant through the register of contracts, that is, to look at:

• The fact of the presence of certain contracts;
• Conformity of cost to the specified value;
• Absence of any penalties, fines and other penalties imposed due to improper performance of obligations under the contract.

Auction

In case of participation in the auction, the company must provide data confirming its conscientiousness, in the process of sending the customer to sign the draft contract.

The application of special protective anti-dumping measures provides for the provision of security for the execution of the contract by the party with whom the contract is concluded, until it is concluded. If the supplier does not comply with this requirement, it is recorded as evaded the contract, then the evasion is formalized by an official protocol posted in a single information system.

It should be noted that if the information provided by the participant, the commission is recognized as unreliable, then in that case they can not conclude a contract with him, and he, again, admits to evading drawing up the contract. In such a situation, the decision made by the bidding commission must also be registered with the appropriate protocol placed in a single information system and communicated to each participant within one working day following the date of signing the protocol.

Application Features

In accordance with Art. 37, anti-dumping measures are applied in a special order in the process of special procurement. In particular, they include the organization of various competitions, in which they recruit performers for research and development, technological or scientific research work, as well as to provide various consultations.

When conducting such trades, the customer has the right to indicate in the tender documentation various values of the criteria for evaluating bids, if the participant wants to submit an application with a value that is lower than the declared value to 25%.

If the price proposal is less than 25% below the NMC contract, then the application of anti-dumping measures is carried out as follows: the magnitude of the significance of this criterion is set equal to 10% of the total value of the significance of all these evaluation criteria.

If the main subject of a contract for which a tender or auction is being conducted is the delivery of any goods necessary for a normal life support, then the bidder offering the contract value more than 25% lower than the original one must provide the customer with the justification for such Prices. Anti-dumping and countervailing measures in this case help to significantly improve the quality of performance of their duties by participants, "filter" unscrupulous performers, since for filing such an application it is necessary to provide:

• A letter of guarantee from the manufacturer, in which the exact price and quantity of the delivered products will be indicated;
• Documents that confirm that the bidder has the indicated goods;
• Other documents and calculations that could serve as a confirmation of the possibility of the bidder to ensure the supply of goods at the proposed price.

Features of types of trades

When taking part in the competition, the applicant must submit, in the composition of his application, a rationale for participation in it.

If the procurement commission acknowledges in the process of the evaluation of an application that the availability of this document is necessary but has not been provided, the application may be rejected. The decision of the commission in this case should be fixed in the protocol of evaluation and consideration of applications for participation in tenders or consideration of a single application.

During the auction, a letter of guarantee or a package of documents is provided, which confirms the existence of a certain product. All this documentation must be provided to the customer in the process of sending the contract of the contract already signed. If the participant does not comply with these requirements, that is, does not send the required package of securities, then the anti-dumping measures are applied to it in accordance with Law 44-FZ. At the same time, he is recognized as evading drafting a contract.

Case study

The winner of the contest evades the drawing up of the contract, as a result of which the customer offered to conclude it with the participant, whose application was awarded the second place, and he agreed, but the cost he offered was 25% lower compared to the initial one. Thus, appropriate measures must be applied to this participant, namely: he must arrange for increased security or provide information that could confirm his integrity.

The participant failed to comply with these requirements, as a result of which the antimonopoly body 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 took the second place in the competition agreed to 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 is recognized as evading 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 anti-dumping and countervailing measures may not be applied. This happens in such cases, when:

• The purchase of medicines included in the list of essential and vital preparations approved by the government of the Russian Federation is underway.
• The procurement participant, with whom the contract is concluded, offers the value of all purchased medications, 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 medicines.

Thus, an agreement on anti-dumping measures may provide for their withdrawal from a participant if it fulfills the above requirements.