Restriction of competition under Article 44 of the Federal Law. Restriction of competition

Restricting competition in procurement is a serious violation, for which you can receive punishment up to and including criminal. The culprits are often both customers and participants. What are the signs of restricting competition and how to complain about illegal actions to the FAS, read the material.

Restriction of competition under 44-FZ

Competition is the rivalry between participants in the same product market (market for services or work). Restrictions on competition in relation to bidding are considered to be:

• concerted action;
• coordination of economic activities;
• anti-competitive agreements;
• cartel agreements.

The main distinguishing features: the presence of an agreement and purposeful influence on the result of the procurement procedure.

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• Signs of restriction of competition under 44-FZ
• refusal of the bidder to act independently;
• coordinated actions of several participants;
• any impact on the course of trading;
• concluding agreements aimed at creating advantages for one of the participants;
• illegal access to confidential information (in case of collusion between the customer and the participant);
• violations of the procedure for determining the winners;
• illegal rejection of participants' applications;
• establishment of impossible requirements by the customer;
• preparation of documentation for a specific supplier;
• participation in tenders of officials of the customer or persons having a conflict of interest with him;
• restricting access to participation in procurement;

inclusion of unrelated goods, works and services in one purchase, etc.

Violation of the established rules leads to the recognition of the purchase and the concluded contract as invalid.

According to the controllers, the participants were presented with unnecessary, difficult and burdensome requirements. The customer was not happy with this turn of events. He went to arbitration, confident that the judges would take his side. Why did the arbitrators not live up to his hopes and what kind of draconian demands did the customer make of the participants? find out in the review

Fine for restricting competition under 44-FZ

Punishment may be imposed under Art. 14.9 Code of Administrative Offenses of the Russian Federation. It establishes responsibility for limiting competition by government authorities, whose representative is any government customer. The official faces a fine of up to 50 thousand rubles. For a repeated violation, the official will be disqualified for up to three years.

Liability for agreements restricting competition is established in Art. 14.32 Code of Administrative Offenses of the Russian Federation. A cartel agreement will result in a fine for participants up to half the initial trading price (at least 100 thousand rubles).

Criminal punishment is threatened if the damage from the actions of the participants in the conspiracy exceeded 10 million rubles. The sanction is established in Art. 178 of the Criminal Code of the Russian Federation:

• fine up to 500 thousand rubles;
• forced labor for up to 3 years with disqualification for up to 1 year;
• imprisonment for up to 3 years with disqualification for up to a year.

In case of particularly large damage (more than 30 million rubles), the term of imprisonment increases to 6 years. Additionally, the culprit may be fined one million rubles.

Complaint about restriction of competition under 44-FZ

The period during which you can file a complaint with the FAS depends on the nature of the claims. If they relate to procurement documentation, you can send an appeal at any time before the deadline for submitting applications. If a participant is dissatisfied with the procedure for determining a supplier (for example, the rejection of an application), he must contact the FAS before concluding a contract. If the document has already been signed, you will have to complain to the court.

The complaint can be made either in paper form or in the form of an electronic document. It must be signed personally by the applicant. What should be in the complaint:

• customer data: address and details;
• information about the author of the appeal - name or full name, contacts, address;
• procurement information;
• the essence of the complaint;
• a list of documents confirming violations committed by the customer or an individual official.

Please attach all supporting documents to your complaint. If the FAS has not rejected the appeal within two days, then it has been accepted for consideration. A complaint may be rejected if it is anonymous, does not comply with legal requirements, or has expired. It takes the FAS up to 5 days to evaluate the arguments. Next, the consideration of the case begins with the participation of the parties to the dispute. As a result, the department makes a decision. If it turns out that the customer has limited competition, he will be given an order. so that the FAS accepts and considers the complaint.

Practices to restrict competition

The Samara Bidding Management Department held an auction for work to improve children's and sports grounds in one of the city's districts. The contractor was required to supply and install architectural objects and restore coatings. However, one of the participants did not like the requirements for the materials. OPT-SNAB LLC complained to the Federal Antimonopoly Service that the customer had established such requirements for materials, the indicators for which can only be determined after testing a separate batch.

The procurement documentation provided specific indicators for density, hardness of the pad coating, tensile strength, thickness, and temperature of use. The participant complained that he could not submit an application for the auction because he simply did not know most of these figures in relation to the materials with which he planned to work. He said in the complaint that to do this, you either need to have a testing license yourself, or contact a specialized organization, having previously purchased a batch of goods.

In the latter case, there is a high risk of losses, because the products may not meet strict requirements. OPT-SNAB LLC referred to the fact that the law does not oblige participants to have products and materials in stock. This is stated in the letter of the FAS Russia dated July 1, 2016 No. IA/44536/16.

But the Samara OFAS did not find any requirements in the documentation that violated the law. In its decision on complaint No. 270-12863-18/7 dated March 28, 2018, the department cited an excerpt from the instructions for filling out the application: “The names, values ​​of indicators, units of measurement, of goods must correspond to the names, values ​​of indicators of goods, including technical parameters established in the description of the procurement object and in accordance with the requirements of the Information Card contained in the documentation about the electronic auction.” FAS pointed out that the documentation for the auction does not mention that participants are required to describe in detail the chemical composition, components of the product and indicators of production technology, which can be found out after testing.

The department also did not ignore the fact that 14 bids ultimately came to the auction, hinting that the conditions were not so impossible. The complaint was declared unfounded. When appealing, it is worth considering that your interpretation of the provisions of the documentation and the law may not coincide with the vision of the FAS. This happened in the next case, when the opinions of the government agency and the participant regarding the quality of the procurement documentation differed.

Good afternoon, Alexey

issues of restricting competition in public procurement are regulated

Article 17 Federal Law “On Competition”

Article 17. Antimonopoly requirements for bidding, request for price quotations for goods, request for proposals
1. When conducting bidding, requesting price quotations for goods (hereinafter referred to as request for quotations), requesting proposals, actions that lead or may lead to the prevention, restriction or elimination of competition are prohibited, including:
1) coordination by the organizers of tenders, request for quotation, request for proposals or customers of the activities of their participants, as well as the conclusion of agreements between the organizers of tenders and (or) customers with participants in these tenders, if such agreements are aimed at or lead or may lead to restriction of competition and ( or) creating preferential conditions for any participants, unless otherwise provided by the legislation of the Russian Federation;
2) creating for a trading participant, request for quotation, request for proposals or for several trading participants, request for quotation, request for proposals preferential conditions for participation in the tender, request for quotation, request for proposals, including through access to information, unless otherwise established by federal law;
3) violation of the procedure for determining the winner or winners of the auction, request for quotations, request for proposals;
4) participation of organizers of bidding, request for quotations, request for proposals or customers and (or) employees of organizers or employees of customers in bidding, request for quotations, request for proposals.
3. Along with the prohibitions established by parts 1 and 2 of this article when conducting tenders, requesting quotations, requesting proposals in the case of procurement of goods, works, services to meet state and municipal needs, it is prohibited to restrict competition between tenderers, participants in the request for quotation, participants in the request for proposals and then inclusion in the lots of goods, works, services that are technologically and functionally not related to goods, works, services, supplies, implementation, provision of which are the subject of bidding, request for quotations, request for proposals.

Therefore, your question whether it is a restriction of competition should be assessed based on the following circumstances:

Interconnection of goods and works

Is there a functioning market for these goods and services (that is, are there organizations in your market that supply goods and provide repair and maintenance services). As a rule, the antimonopoly service in this regard evaluates commercial proposals collected by the customer at the stage of generating documentation, data from the organization’s websites, etc.

Very often, our clients who participate in government procurement and turn to us for information complain to us that the customer has set delivery times that are too short and impossible to meet. We talk about this and that in other articles. Of course, it is theoretically possible to argue that such conditions significantly limit competition, which is contrary to Article 8 of the 44-FZ. However, it is actually very difficult to prove this fact. Indeed, how can you prove that something is impossible to accomplish, or at least extremely difficult? Is specifying minimum terms for contract execution a restriction of competition in public procurement?

Real deadlines for the execution of a government contract

It is necessary to document the actual production time of the product and its delivery time. Moreover, only supplier companies and carriers can confirm this, but certificates or official letters from such companies will not be exhaustive evidence, since there is no guarantee that the documents were received from the fastest working companies and they do not have competitors who can do it faster. In this case, it is much easier for the customer to prove the reality of such a period: an official confirmation letter from one company is enough. These letters are usually collected at the stage of justifying the initial maximum contract price.

Does the customer have the right to set tight requirements for the timing of execution of a government contract?

Most likely, the antimonopoly authorities or the court will tell you that the customer needs the goods urgently, and it is his right to demand such deadlines, and in the public procurement procedure the strongest company that has the resources and ability to deliver the goods quickly should win. Proving that such a deadline is unreasonable for the customer’s needs is also very problematic: it is necessary to look at the customer’s statutory goals, its regulatory environment and find cause-and-effect relationships, to prove that even with a longer delivery time the customer will be able to fulfill its tasks. In this context, the situation in which a customer purchases perishable medicines for emergency medical care is fundamentally different from the situation in which a school purchases furniture for classrooms at the beginning of a long summer vacation. Although this does not mean that the customer cannot want the best.

What requirements does the state customer have the right to establish?

Part 1, paragraph 1 of Article 33 of 44-FZ prohibits the establishment of requirements for goods, information, work and services that entail a limitation on the number of participants. However, delivery times are not listed in this list at all, since they are a condition for the execution of the contract, and not a product or service as such (after all, customers usually set the OKPD code precisely as a product code). According to Article 421 of the Civil Code of the Russian Federation on freedom of contract, these conditions can be any that satisfy both parties. In addition, it will be necessary to prove that the customer introduced these deadlines in order to ensure victory for a specific supplier, and not based on the objective goals of the organization, and this is already a criminal offense, which is extremely difficult to prove.

According to the legal position formed in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 28, 2010 No. 11017/10 in case No. A06-6611/2009, the main objective of the legislation establishing the procedure for conducting tenders is not so much to ensure the widest possible range of participants in placing orders, but identification as a result of bidding of the person whose execution of the contract will best meet the goals of effective use of funding sources and prevention of abuses in the area of ​​placing orders. Moreover, paragraph 2 of Article 8 of 44-FZ says the same thing: the goal of ensuring competition is to identify the best conditions for the supply of goods, performance of work, and provision of services. That is, minimizing delivery time is not at all a limitation of competition, but the identification of the best conditions.

Is narrowing the execution period of a government contract a restriction of competition?

There really is no direct violation of the law in the requirement of minimum delivery times. Signs of restriction of competition are listed in Part 17 of Article 4 and Art. 17 135-FZ “On Protection of Competition”, and such a requirement does not appear there. The customer has the right to objectively describe what he wants to receive, and there will probably be organizations that will submit an application and magically fulfill all the conditions, proving you wrong. When considering cases on declaring decisions of antimonopoly authorities illegal, courts often pay attention to the fact that if, when executing the FAS order and repeating the purchase with a longer delivery time for goods, the number of participants in placing the order did not increase, then there was no restriction of competition .

In this regard, there is both the practice of considering complaints by antimonopoly authorities and judicial practice:

• Determination VAS-4795/13 dated April 23, 2013, confirming the legality of the decision of the 17th Arbitration Court of Appeal and the Arbitration Court of the Udmurt Republic in case A71-6077/2012, in which the order of the Federal Antimonopoly Service for the Udmurt Republic dated March 16, 2012 in case SYU 07-06/ 2012-36 Z on eliminating the competition-limiting short delivery period for goods within 10 working days was declared illegal on the grounds that the restriction of competition in this case is not justified in any way. According to the court, such a restriction could be justified by analyzing the terms of transportation by various modes of transport and similar terms set by other customers. The court also pointed to the fact that the minimum delivery time is not defined either by the law on placing orders or by the Civil Code and is set at the discretion of the customer.
• An absolutely similar definition is BAC-7089/2013 dated June 17, 2013.

Examples of decisions in which time limits were declared illegal

• Another thing is curious: a year earlier, the same customer (Ministry of Transport and Road Facilities of the Udmurt Republic) appealed to the same courts (Arbitration Court of the Udmurt Republic and then the 17th Arbitration Court of Appeal, in which two of the three members of the judicial panel were the same judges) with absolutely the same same arguments and demands to cancel two similar decisions of the same OFAS in the Udmurt Republic, which recognized the requirements for delivery times of even similar goods (road equipment) as limiting competition, and lost the court in both instances (combined case No. A71-6674/2011, A71-6675/2011 ). The only difference between these two cases was that in 2011 the delivery time for the goods was not 10, but 3 business days. In this case, the court found that despite the absence of legal requirements for minimum delivery times for goods, the customer should approach this issue wisely and not set clearly disproportionate terms, since the delivery time for goods is an essential condition of the contract and may affect the number of procurement participants.
  Resolution of the Federal Arbitration Court of the North Caucasus District in case No. A32-43306/2011, which left unchanged the decision of the Arbitration Court of the Krasnodar Territory dated June 14, 2012 on recognizing the decision of the antimonopoly service for the Krasnodar Territory No. 11945/5 dated September 1, 2011 as illegal. According to the Federal Antimonopoly Service of the North Caucasus District, the establishment of conditions that exclude from the circle of potential suppliers persons who do not meet the goals of the most efficient use of budget funds, taking into account the quality of goods and delivery conditions, is not a restriction of competition, but, on the contrary, a method of increasing the efficiency of spending funds. Such a condition can be recognized as violating competition only if it is directly proven that it was introduced to ensure victory for a specific business entity. Moreover, in this particular case, the need for emergency delivery of goods was dictated by a really justified need, and the requirement to comply with the delivery time is not at all a requirement for the goods.

Limitation of terms is considered as an additional argument for other signs of restriction of competition

• The decision of the Federal Antimonopoly Service for the Stavropol Territory in case No. RZ-170-2013 dated April 2, 2013, in which the provisions of the open auction documentation were recognized as limiting competition. True, in the complaint of ProtexPharm LLC there were quite a lot of points with which they justified the restriction of competition, and the limitation of the delivery time, in our opinion, was not the main one there. A more important argument was the combination of medicines from different pharmacological groups into one lot.
  The decision made by the Federal Antimonopoly Service for the Samara Region on the groundlessness of the complaint of VRT LLC against the actions of MBDOTS Kindergarten No. 210 dated September 27, 2012, indicating extremely short delivery times for goods. However, we are very surprised by the reasoning part of this decision, which states that due to the fact that the contract is signed no earlier than 10 days after the publication of the protocol, delivery within one day is possible. This decision does not take into account that in fact the supplier, starting to fulfill the contract before it is signed, bears high risks, since the 10-day period is given precisely so that other participants in the order placement can protest the actions of the customer, and if the complaint filed by them is considered justified, the procurement results may be completely canceled. Moreover, according to clause 2 of Article 307 of the Civil Code of the Russian Federation (and the legislation on the contract system in the field of procurement is based on its provisions in accordance with clause 1 of Article 2 of 44-FZ), obligations arise from the contract, that is, before the contract is signed by The supplier has no obligation to supply the goods, just as the customer has no obligation to subsequently pay for it, that is, until the contract is signed, the supplier, in principle, cannot fulfill the contract.

Conducting criminal investigations with reduced deadlines for execution of government contracts

• Resolution of the Federal Arbitration Court of the Far Eastern District No. F03-1824/2013, which left unchanged the decision of the Arbitration Court of the Sakhalin Region in case No. A59-3533/2012, according to which the decision of the Federal Antimonopoly Service for the Sakhalin Region in case No. 05-10/12 was recognized as legal. However, in this case, the decision was made on the basis of a prosecutor's investigation into the fact of collusion between the customer and the supplier, established on the basis of testimony of third parties, the content of technical requirements for the product and, among other things, also establishing a delivery time of one day. That is, if there is evidence of collusion between the supplier and the customer, short delivery times for goods are accepted by regulatory authorities as additional confirmation.

According to statistics from 2013, one of the most popular tricks of customers to form purchases for “their” suppliers was to set minimum delivery times with minimal penalties for non-fulfillment and maximum points for the delivery time criterion in competitions. However, to this day this issue has not been resolved. As we see, the antimonopoly authorities do not have a unanimous opinion on this matter, however, the courts, in particular the Supreme Arbitration Court, still more often decide that these measures are not a restriction of competition. You can learn about other ways to limit competition in the government procurement market

To the question of what the principle of ensuring competition means, Federal Law 44 gives a very specific answer in.

Firstly, anyone can take part in the state tender if they meet the legal requirements.

Secondly, it assumes not only competition between procurement participants on price, but also. This is clearly seen in and, where the winner must offer the best terms for the execution of the contract.

Thirdly, customers are prohibited from unreasonably limiting the number of suppliers participating in the tender. Only justified restrictions are possible, as, for example, in closed procedures or in a competition with limited participation.

How the principle of ensuring competition is implemented

The principle of ensuring competition manifests itself at different stages of the tender. Thus, the customer does not have the right to indicate trademarks, etc., because this may lead to a limitation in the number of participants. It is also prohibited to establish requirements for the qualifications and business reputation of the participant () in the procurement documentation. Exceptions are cases when the law itself establishes such a need.

Prohibits negotiations between customers and participants until the winner of the purchase is determined, except in certain cases (for example,). Moreover, when conducting an electronic auction, it is not allowed to conduct only those negotiations that create more favorable conditions for individual participants, or there is a risk of disclosure of confidential data.

The requirement for a mandatory contract, which is concluded with a single supplier as a result of a failed procurement procedure, is also based on the principle of ensuring competition. This additional control prevents unscrupulous customers and suppliers from colluding.

What to do if there is a violation

Failure to comply with the principle of ensuring competition leads to a violation of the right of suppliers to equal access to procurement, and therefore can be appealed to the FAS or in court. Moreover, not only interested participants, but also associations (public or legal entities) can apply.

You can complain about:

1. Documentation.
2. Actions or inactions of the auction organizer (customer, specialized organization, authorized body, etc.)
3. ETP operator during accreditation.

The deadlines for submission and rules for drawing up such documents are indicated in. If these deadlines are violated, or if the complainant disagrees with the decision of the control body, you can go to court with a demand to restore your rights and/or cancel the purchase.

Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition” (hereinafter referred to as Law 135-FZ), which establishes a ban on restricting competition between bidders, participants in the request for quotations, participants in the request for proposals by including goods, works, services that are technologically and functionally not related to goods, works, services, supplies, implementation, provision of which are the subject of bidding, request for quotations, request for proposals. Restriction on the participation of suppliers under Federal Law 44. And the bulk of them occur in a short time, which has a significant impact on the formation of this percentage. How to file a complaint with the FAS? If you believe that your competitors are creating any of the above conditions for unhealthy competition, you should first consult with antitrust experts.

Attention

Competition in procurement should be based on compliance with the principle of fair price and non-price competition between procurement participants in order to identify the best conditions for the supply of goods, performance of work, and provision of services. Expert Solutions d.)? Is this a restriction on competition? Consolidation into one lot is due to small purchase volumes. If this is a restriction of competition, what sanctions does the customer face? Restriction of competition In accordance with paragraph.

Restriction of competition by the customer in the terms of reference of the auction

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Good afternoon Which Article 44 of the Federal Law can be referred to when appealing the actions of the customer in terms of restricting competition in the technical specifications. Dimensions of the device. We wrote a request for clarification, the customer completely ignored the question about dimensions in his response Collapse Victoria Dymova Support employee Pravoved.ru Similar questions have already been addressed, try looking here:

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N 329-st) also includes technologically heterogeneous products. This circumstance indicates that it is fundamentally possible for the regulatory body to classify the actions of the customer, who combined such (functionally, but not technologically interrelated) goods into one lot when carrying out the procedure for determining the counterparty, as limiting competition. Unfortunately, due to the evaluative nature of the issue under consideration, one cannot speak of the existence of a uniform approach to its resolution in law enforcement practice, nor the availability of official explanations that would formulate any universal criteria that would make it possible to unambiguously assess the legality of combining various goods within one lot. A special type of composition is supplemented by a conspiracy of a group of persons and/or concerted actions aimed at implementation of the crime.

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Article 8. principle of ensuring competition

At the same time, in order to avoid unnecessary negative consequences, it is still recommended to conduct a separate procurement for those works that require any legally established permits, and separately for those that can be performed by absolutely any contractor. ATTENTION! To automatically generate all reports and check those already created in the UIS, use our software.

The program will also check your purchases for errors for free, calculate the NMCC and SKP, help you find the necessary OKPD2 and much more! Read more…
A qualifying sign of restriction of competition is a violation of one or more conditions for the harmonious functioning of the market, it is expressed in the following characteristics:

• Fixing prices at monopolistically high or low levels;
• Limiting a competitor's entry into the market;
• Conspiracy to capture a market segment;
• Setting and maintaining a certain uniform price;
• Illegal elimination of rivals from the market field.

Read on to learn what the Criminal Code of the Russian Federation says regarding preventing the restriction or elimination of competition. This indicates that the state policy on this issue is quite clearly described, the area is being carefully studied and many of its aspects are covered in current legislation.
Restriction of competition and monopolistic activities are limited by laws and regulations, such as Government Decrees.

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These requests, in turn, must contain a list of the characteristics of the goods required by the auction documentation in full. In addition, passports, user manuals, certificates are confirmation that a particular product meets the requirements of the documentation, provided that the required characteristics are reflected in the listed documents.

Please note that the information contained on the official websites of manufacturing companies or on any other Internet resources does not constitute evidence that the product has certain characteristics. Moreover, this information is not accepted for consideration either by the Commission of the antimonopoly authority or by the courts.