In the name Russian Federation

Case No. A40-37651/2016-2-274
Moscow
May 25, 2016
The operative part was announced on May 18, 2016.

Arbitration court consisting of:

Presiding T.I. Makhlaeva

judges: individually

when keeping the minutes of the court session by secretary Babenskaya E.A.

considered at a court hearing the case at the request of 1) RaShine Cleaning LLC; 2) LLC "Service Workshops"

to the defendant: OFAS Moscow

on declaring illegal the decision of November 27, 2015 No. EP/48038-2 and the order No. EP/48039 of November 27, 2015 and No. EP/480040 of November 27, 2015.

The meeting was attended by:

from the applicants: 1) LLC "Rashine Cleaning" - Solntseva N.V., Dov. dated May 12, 2015; 2) LLC "Service Workshops" - Belyaeva O.A., Dov. from 08/12/2015

from the defendant: Sidorova Ya.I. - cert. No. 13539 dov. No. 03-20 dated December 28, 2015

INSTALLED:

RaShine Cleaning LLC, Service Workshops LLC appealed to the Moscow Arbitration Court with a statement asking to recognize as illegal the decision of the Office of the Federal Antimonopoly Service for Moscow dated November 27, 2015 No. EP/48038-2 and the order No. EP/ 48039 dated November 27, 2015 and No. EP/480040 dated November 27, 2015.

In support of the stated requirements, RaShine Cleaning LLC and Service Workshops LLC point out that there was no violation of the requirements established by clause 2, part 1 of Art. 11 of the Law on Protection of Competition.

The contested decision states that the damage from the implementation of cartel agreements has not been established, just as the receipt of income by Service Workshops LLC has not been established.

According to the applicants, Service Workshops LLC had no objective reasons for concluding an agreement restricting competition at auction No. 0373100009914000824.

Four participants initially participated in this auction, that is, in addition to the plaintiffs, applications for participation were submitted by 2 more companies that were not allowed to participate by the customer due to the non-compliance of the submitted applications with the requirements of the auction documentation, and as a result, only plaintiffs. This circumstance could not have been known to the applicants in advance.

The applicants also refer to the fact that their actions did not lead to a violation of the rights of third parties, to the elimination of competitors, or to maintaining prices; the contract was awarded at a reduced price. They also indicate that the current legislation on the contract system does not provide for the obligation of the participant to reduce the initial (maximum) price of the contract, and the refusal of auction participants to further reduce the initial price does not yet indicate unconditional proof of the focus of their actions on maintaining the price.

The applicants also refer to the fact that no written or oral agreements on the creation of a cartel were concluded between them.

A further reduction in price for RaShine Cleaning could lead to losses for the company, which would make the conclusion of the contract impractical.

The message received by the Department from Ilyina Svetlana Vyacheslavovna on behalf of UniversalCleaning Master LLC, on the basis of which the inspection was initiated, is, according to the applicants, an abuse of law.

The applicants believe that they are part of the same group of persons, since the general directors of the companies are sisters, and therefore these organizations cannot violate the requirements of paragraph 2 of part 1 of Art. 11 of the Law on Protection of Competition.

In this regard, according to the applicants, the contested decision and orders are subject to recognition as illegal in court.

The defendant objects to the application, citing the legality, validity of the contested acts, and the lack of legal grounds to satisfy the applicant’s demands.

Having heard the representatives of the applicants and the defendant, examined the case materials, assessed the presented materials in their totality and mutual connection, the arbitration court comes to the conclusion that the stated claims must be satisfied on the following grounds.

During auctions, the companies were located at the same address.

IP addresses changed, but the change was always synchronous.

As a result of analyzing the properties of the files obtained trading platform from the same IP addresses from the companies, the defendant came to the conclusion that the coincidence of the accounts on which application files were created and modified (“Pavel Chernenko”, “user 31”), as well as, in some cases, dates and time of creation of such files.

The antimonopoly authority also analyzed and found identical the contents of the application files “00_3application_0373100096513000354” and “Consent_0373100096513000354”, “0373100009914000508” and “First part 508”, “Application l.pdf” and “Coraacne.pdf ", submitted by companies to participate in auctions in part offered goods, their manufacturers and technical characteristics.

According to clause 2, part 1, art. 11 of the Law on Protection of Competition prohibits agreements between business entities if such agreements lead or may lead to an increase, decrease or maintenance of prices at auction.

In accordance with paragraph 18 of Art. 4 of the Law on Protection of Competition, an agreement is an agreement in writing contained in a document or several documents, as well as an oral agreement.

According to the legal position of the Plenum of the Supreme Arbitration Court of the Russian Federation, contained in Resolution No. 30 dated June 30, 2008 “On some issues arising in connection with the application of antimonopoly legislation by arbitration courts” (clause 2), coordination of actions can be established even in the absence of documentary evidence existence of an agreement on their implementation.

A similar assessment can also be applied when considering cases of concluding anti-competitive agreements, since the interpretation given in the mentioned resolution concerns the analysis of the behavioral aspects of anti-competitive compounds. Since an agreement, as a legal category, presupposes the existence of both a conclusion and its execution, the assessment of the actions of economic entities during competitive procedures, the competitive nature of which is presumed, should be carried out on the basis of the principles of completeness, objectivity and a comprehensive analysis of all the factual circumstances of the case, and not limitations to statements of facts.

A cartel is an agreement that is prohibited by law and entails administrative or criminal liability; cases of concluding formal (documentary) anti-competitive agreements are extremely rare. Agreements are concluded (achieved) through oral agreements, electronic correspondence or implicit actions of the participants.

Disposition part 1 art. 1 tbsp. 11 of the Law on Protection of Competition is an alternative, since as a qualifying feature of an anti-competitive agreement, the said norm provides for both the real possibility and the threat of the consequences provided for in paragraphs. 1-5 of this provision of the Law. Distinctive feature concerted actions, the prohibition of which is established by Art. 11.1 of the Law on Protection of Competition, is only the actual occurrence of the negative consequences described in paragraphs. 1-5 part 1 of the said article of the Law. Accordingly, the distinction between the aforementioned anticompetitive elements imposes on the antimonopoly authority a different scope of public law responsibilities to prove their consequences: the need to confirm such consequences in the case of qualifying anticompetitive behavior as concerted actions, on the one hand, and the presence of a threat of their occurrence, when qualifying behavior on the basis of h . 1 tbsp. 11 of the Law on Protection of Competition (Conclusion of an Agreement).

As established by the court, RaShine Cleaning LLC and Service Workshops LLC have the same location: Moscow, st. Dubrovskaya 1-ya, 13A, p. 2, which could create the preconditions for the defendants to enter into an agreement for the purpose of joint participation and maintaining prices at the auction; legally significant actions during the auctions in question were carried out from the same IP address; if the IP addresses of the plaintiffs changed, then the changes were synchronous, which, according to the defendant, is possible only within the framework of the agreements reached; a match has been established between the accounts on which the application files were changed, as well as, in some cases, the dates and times of creation of such files; the defendant recognized the contents of the application files to be identical, in terms of the goods offered, their manufacturers and technical characteristics; the RaShine Cleaning account, which changed the file “Consent 03731000096513000354” submitted as part of the application of Service Workshops LLC, coincides with part of the name of the second defendant - RaShine Cleaning LLC.

According to the defendant, the above indicates that the plaintiffs are using coordination in preparing bids for auctions, and that competitors are using a single infrastructure, which is only possible in the case of cooperation and consolidation to achieve a common goal for all. In connection with the above, the defendant concluded that the results of the above auctions cannot be recognized as the result of competition, but are the result of an oral agreement that does not meet the principles of competition, despite the fact that the plaintiffs are not part of the same group of persons. The above behavior allowed RaShine Cleaning LLC to win auctions with a reduction of 1%, as a result of which the company received income in the amount of 66,231,000 rubles.

When making a decision, the defendant did not take into account the following circumstances, which were indicated by the plaintiffs in written objections included in the case materials at the Commission meeting on August 24, 2015.

For the purpose of qualifying actions of business entities as committed in violation of clause 2, part 1, art. 11 of the Law on the Protection of Competition, the following circumstances are subject to establishment: evidence of the participation of these entities in the single commodity market, their conclusion of an agreement (in writing or oral form), the absence of objective reasons for concluding such an agreement, whether there was a real decrease or maintenance of prices at the auction or a threat of given circumstances.

The decision of the Supreme Arbitration Court of the Russian Federation No. VAS-8816/14 dated July 22, 2014 confirmed the need for the antimonopoly authority to establish the fact that participants in an agreement restricting competition received economic benefits, that is, in addition to the above circumstances, it must be proven that all persons who are found to have violated paragraph 2 of part 1 of Article 11 of the Law on Protection of Competition, any benefit was received from the results of the auction. The above circumstances must be established in relation to each of the three episodes of identified violations specified in the defendant’s decision.

Service Workshops LLC had no objective reasons for concluding an agreement restricting competition at auction No. 0373100009914000824.

The said auction was initially attended by four participants, i.e. In addition to the plaintiffs, applications for participation were submitted by 2 more companies that were not allowed to participate by the customer due to the non-compliance of the submitted applications with the requirements of the auction documentation, and as a result, only the plaintiffs were allowed to participate in the auction. This circumstance could not have been known to the applicants in advance.

In accordance with paragraph 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2008 N 30 (as amended on October 14, 2010) “On some issues arising in connection with the application of antimonopoly legislation by arbitration courts,” it should be taken into account that it is necessary to confirm the absence on the part of a specific business entity violations in the form of concerted actions may also include evidence of the presence of objective reasons for this economic entity’s own behavior on the product market and (or) the absence of conditionality of its actions by the actions of other persons.

Evidence of the presence of objective reasons for the own behavior of LLC "Service Workshops" is the information letter of LLC "Independent Strategic Partnership" (an organization that provides intermediary services on the issues of issuing bank guarantees in partner banks) about the banks' refusal to issue LLC "Service Workshops" a bank guarantee, the presence of which is prerequisite to conclude a contract in case of winning the auction. The information contained in the letter was communicated to CEO LLC "Service Workshops" at the time of the auction. This circumstance served as the reason for refusing further competition, since winning the tender in the absence of the opportunity to provide security for the execution of the contract entailed negative consequences for Service Workshops LLC, including in the form of inclusion in the register of unscrupulous suppliers.

In addition, Service Workshops LLC made its auction offer, and reducing the price below the competitor’s offer was not economically profitable, since the initial price of the auction item was already below the market price, and a further price reduction was not in the interests of society.

As part of the auction documentation, the customer provided a justification for the initial contract price, which was determined by the customer on the basis of a request for commercial proposals. RaShine Cleaning LLC made an offer for the price of services, which was already lower than the lowest price of commercial proposals, on the basis of which the customer calculated the initial price of the auction and reducing the price by 1% not only did not violate, but also served the interests of the customer, which concluded a contract on the most favorable terms for himself.

Evidence that the applicants, through their actions, maintained the price was not provided in the defendant’s decision. After all, punishable within the meaning of clause 2, part 1, art. 11 of the Law on Protection of Competition is not any agreement between economic entities, but only one that led or could lead to price maintenance, which did not happen in the case under consideration.

LLC "Service Workshops" had no interest in such an agreement and did not receive any material benefit in connection with the refusal to further compete. On the contrary, the book of income and expenses of organizations presented in the case materials and individual entrepreneurs applying the simplified taxation system for 2014, the list of counterparties confirms that RaShine Cleaning LLC is not a counterparty of Service Workshops LLC.

The actions of the organizations did not lead to a violation of the rights of third parties, to the elimination of competitors, to maintaining the price; the contract was concluded at a reduced price, below the commercial proposals, on the basis of which the initial price of the contract was calculated by the customer, and not at the initial price, which would have been more profitable for plaintiffs. If there was an agreement aimed at the victory of RaShine Cleaning LLC, Service Workshops LLC would refuse to participate in the auction, and the contract would in this case be concluded with a single participant at the starting price, without reduction.

In addition, the defendant did not take into account the following. Concluding a contract on the most favorable terms is a common behavior of economic participants whose main goal is to make a profit. Auction participants have the right to be guided, among other things, by their own economic expectations regarding the optimal prices for them for the goods offered for delivery. At the same time, the current Russian legislation the obligation of the auction participant to reduce the initial (maximum) price of the contract has not been established. The refusal of auction participants to further reduce the starting price does not yet indicate that their actions are aimed at maintaining the price.

Based on paragraph 18 of Article of the Federal Law “On Protection of Competition”, an agreement is an agreement in writing contained in a document or several documents, as well as an agreement in oral form.

There were no written or oral agreements on the creation of a cartel between RaShine Cleaning LLC and Service Workshops LLC. The offer price of RaShine Cleaning LLC at the electronic auction was 31,680,000.00 rubles. A further reduction in price could lead to losses for the company, which would make the contract impractical. The reduction in the contract price at the electronic auction from 32,000,000 rubles to 31,680,000 rubles was significant for RaShine Cleaning LLC, since the turnover on the company’s account is small, the size authorized capital is 10,000 rubles, the company uses a simplified taxation system.

Based on the above and guided by Art. ,- ,Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) government agencies, organs local government, other bodies, organizations empowered federal law individual state or other public powers, officials > Article 198. The right to apply to the arbitration court with an application to declare non-normative legal acts invalid, decisions and actions (inaction) illegal" target="_blank">198, Section III. Proceedings in arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, organizations vested by federal law with individual state or other public powers, officials > Article 200. Trial in cases of challenging non-normative legal acts, decisions and actions (inactions) of bodies exercising public powers, officials" target="_blank">200, Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, organizations vested with separate functions by federal law state or other public powers, officials > Article 201. Arbitration court decision in the case of challenging non-normative legal acts, decisions and actions (inaction) of bodies exercising public powers, officials" target="_blank">201 Arbitration Procedure Code of the Russian Federation, court

DECIDED:

Recognize as illegal and invalid the decision of the Office of the Federal Antimonopoly Service for Moscow dated November 27, 2015 No. EP/48038-2 and instructions No. EP/48039 dated November 27, 2015 and No. EP/480040 dated November 27, 2015.

To collect from the Office of the Federal Antimonopoly Service for Moscow in favor of RaShine Cleaning LLC a state duty in the amount of 3,000 rubles, and Service Workshops LLC a state duty in the amount of 3,000 rubles.

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08/30/2013 15:08, Kurgan region, website:

Bidding is a traditional institution of civil law, reflecting a special procedural aspect of concluding a contract. However, it should be noted that the institution of bidding these days has acquired an intersectoral character: with certain features it is used not only in civil law, but also beyond it.

Bidding as an intersectoral phenomenon has two constitutive features that are also characteristic of bidding as a civil legal institution: equality of bidders and their competitiveness with each other. At the same time, all relations arising in the process of organizing and conducting auctions remain in the field of civil law regulation, regardless of in what area of ​​public relations, as well as for what purposes the auctions are organized and held.

Competitiveness is a constitutive feature of any bidding, objectively determining its essence; in the absence of competitiveness, bidding loses all meaning. At the same time, competitiveness in itself may be inherent not only in bidding, but also in other methods of concluding a contract. Such methods are proposed to be called “competitive procedures for concluding a contract,” the meaning of which boils down to the existence of several alternative counterparties who compete (compete) with each other for the right to become a party (counterparty) to the same contract.

The sign of competition is that the winner of the auction will be the participant who offers the most favorable price for purchasing the property or Better conditions, therefore, each participant strives to ensure that his offer is the most profitable.

Competitiveness as a constitutive feature of bidding finds direct expression in individual elements of the legal regime established for bidding. First of all, it is necessary to indicate the quantitative composition of participants. Bidding with one participant cannot be considered valid (there must be at least two participants). It should also be noted that genuine competition has as a necessary prerequisite the equality of conditions under which competition occurs. Competitiveness, as applied to bidding, presupposes competition on equal terms.

Bidding should be positioned as a special case of competition when concluding a contract; its peculiarity is the tightening of procedural requirements, such as: notification of the bidding, advance determination of the conditions for participation in them, including the possibility of securing bids, and the strictly mandatory conclusion of an agreement based on the results of the bidding with the winner.

In progress there are no contractual ties for organizing and conducting tenders, the construction of an “implied contract for tendering”, accepted by modern legal science, is untenable. Notice of an upcoming auction is not a public offer, but a unilateral transaction by the organizer, the consequence of which is an invitation to make offers, which are the applications of applicants for participation in the auction. The notice exists on its own and does not require any acceptance.

Contractual relations can arise between well-defined, specific persons, but at the time of filing applications for participation in the auction, these persons are not defined in any way: applicants (applicants) will have to go through the procedure for admission to participation in the auction, only as a result of which a circle of bidders will be formed.

There is a complete absence of mutual rights and obligations at the auction. The organizer can change the terms of the auction or cancel them altogether (the consequences of such behavior are different, but bidders have no right to resist it), bidders can change or withdraw their bids at any time, as well as take a completely formal, passive participation in the auction (for example without making bids in a step-by-step auction). In addition, if we consider the notice of auction to be a public offer, and the application to participate in it as acceptance, then the latter should be devoid of independent legal content, which, in turn, is concentrated exclusively in the notice. It is obvious that the bidding mechanism actually functions differently: bidders’ applications must have independent and specific content, i.e. act as offers in relation to the contract, in order to identify the conditions and conclusion of which tenders are held.

Under the current legislation, there is no place at auctions for agreements allowed in international practice between participants in upcoming auctions (on the creation of consortia and similar contractual associations). The reason for this is not only the requirements of paragraph 4 of Art. 447 of the Civil Code of the Russian Federation that the person who wins the auction is an individual or legal entity, as well as the Russian Federation, constituent entities of the Russian Federation and municipalities. Bidding is a civil legal relationship, the participants of which are citizens and legal entities(Clause 1, Article 2 of the Civil Code of the Russian Federation), but not contractual associations.

Due to the increasing detail of procurement and antitrust legislation, unscrupulous customers and bidders are inventing increasingly veiled ways to manipulate the bidding procedure, the detection of which becomes even more difficult for both other participants and regulatory government agencies.

Trading manipulation schemes

Schemes for manipulating bids during tenders often include mechanisms for the proportional division and distribution among participants in the conspiracy of additional profits received by increasing the final price of the contract. For example, competitors who agree not to submit bids or submit a known losing bid may become subcontractors or suppliers by entering into corresponding agreements with the successful bidder to share the benefits of the illegally obtained high contract price. However, long-term bid manipulation agreements may involve much more sophisticated methods of distributing contract wins, monitoring, and distributing the benefits of bid fraud over months or years. Manipulation of entries in competitions may also include cash payments by the winning bidder to one or more colluders. This so-called offset payment is sometimes also associated with firms submitting "cover" bids (with higher prices).

Individuals and legal entities implement various schemes for manipulating applications during competitions in a variety of ways; as a rule, they use one or more common strategies. These techniques are not mutually exclusive. For example, cover submissions can be used in conjunction with a competition winner rotation scheme. These strategies, in turn, may manifest as patterns that procurement officials can recognize, and familiarity with them may help expose bid manipulation schemes.

Submitting cover applications. Cover bids (also called supplemental, auxiliary, formal or symbolic) are the most common way to implement bid manipulation schemes in competitions. It is implemented as follows: individuals or entities agree to submit bids subject to at least one of the following conditions: (1) a competitor agrees to submit a bid at a price higher than the bid price of the bidder who is to be the winning bidder, (2) the competitor submits a bid with a price that is already known to be too high to be accepted, or (3) a competitor submits a bid containing special conditions that are known in advance to be unacceptable to the buyer. Cover bids are intended to create the appearance of real competition.

- Withdrawal of applications. Withdrawal schemes involve agreements between competitors in which one or more companies agree to withhold bids or withdraw a previously submitted bid to ensure acceptance of the winning firm's bid. In essence, withdrawal of applications means that the company's application does not participate in the final consideration by the competition organizers.

- Rotation of applications. In bid rotation schemes, colluding firms continue to submit bids, but they agree to take turns winning the competition (i.e., taking turns to become the qualified lowest bidder). Methods for implementing bid rotation agreements may vary. For example, participants in a conspiracy may decide to distribute the sums of money from a certain group of contracts among all firms approximately equally or in accordance with the size of each company.

- Market division. Competitors share the market and agree not to compete for certain customers or in certain geographic areas. For example, competing firms may allocate specific customers or define groups of customers among different firms so that competitors do not bid (or only submit cover bids) for contracts offered by a particular type of potential customer assigned to a particular firm. The competitor, in turn, will not apply for a competition organized by a group of clients assigned to other firms participating in the agreement.

The possibility of implementing an agreement based on collusion is influenced by industry and product characteristics of the market. Such characteristics may tend to support firms' efforts to manipulate bids. The indicators of competition fraud discussed below may become more apparent in the presence of certain enabling factors. A variety of industry or product characteristics that contribute to collusion; companies do not necessarily need all of these factors to be present in order to successfully manipulate bids.

The main indicators that help reduce the likelihood of concluding an agreement on bid manipulation are:

Large number of bidders. Manipulation of bids in competitive bidding is more likely in cases where a small number of companies are suppliers of a product or service. The smaller the number of sellers, the easier it is for them to reach an agreement on how they will manipulate bids.

Low barriers to entry commodity market. If few firms have appeared or have a chance to appear in a market over a certain short-term period, because entering this market is expensive, difficult or time-consuming, firms operating in this market are protected from competitive pressure from potential newcomers. This security barrier facilitates bid manipulation efforts.

Low demand growth rates. Significant changes in supply or demand conditions will typically destabilize existing bid manipulation agreements. Constant, predictable demand tends to increase the risk of collusion.

Cyclical fluctuations in demand. The absence of collusion in the wave of a cyclical upturn (in a state of anticipation of a downturn) entails for the participant an increase in one-time profits compared to losses in the near future (under the influence of possible profits declining during a downturn).

Differences in costs between market participants (traders). Lower costs in the production of goods/provision of services lead to higher profits outside the agreement and do not entail the participant’s interest in concluding an agreement (there is no interest in support).

Lack of structural connections. Low levels of cross-ownership and participation reduce the likelihood of collusion.

Availability of many substitute goods/services. In the event of a shortage or unavailability of good alternative goods or services that can replace the product or service being purchased, individuals or entities wishing to resort to bid manipulation feel safer knowing that buyers have few good alternatives if they eat at all, and thus their efforts to raise prices have a greater chance of success

The existence of cartels leads to an artificial rise in prices and a lack of new, better goods. Such agreements lead to the fact that participating enterprises lose incentives to introduce innovations, and companies participating in the cartel, as a rule, try to prevent new players from entering the market by raising barriers to entry into the market.

For cartel conspiracy (the most dangerous economic crime), administrative liability is provided with punishment in the form of a turnover fine in the amount of up to 15% of the company’s annual turnover, and criminal liability, with punishment under Article 178 of the Criminal Code of the Russian Federation in the form of a fine from 300 thousand to 1 million rubles , and for especially dangerous cartels the prison term is from 3 to 7 years in prison.

In order to identify competitive fraudsters, you need to know certain signs of unfairly conducted auctions: a small number of participants, only a symbolic reduction in the offer price, incomplete attendance at the auction, etc.

These main features can be established by free access to the all-Russian official website for placing orders for the supply of goods, performance of work, provision of services for state and municipal needs www.zakupki.gov.ru, where all the actions of the companies participating in the placement of the order according to the so-called “cutting” » are visible in the public domain. In bid rigging, competitors agree on the terms of a bid to maximize their profits and eliminate competition.

Apply in case of detection of signs of violation of antimonopoly legislation in the form of collusion at auctions, you can contact the Kurgan OFAS Russia at the address: Kurgan, st. M. Gorky, 40, room 215, tel. 45-39-55, f. 46-39-85, e-mail: [email protected]

The requirements for filling out an application are established by parts 1 and 2 of Article 44 of the Law on Protection of Competition.

If you do not have sufficient information necessary to write an application to the antimonopoly authority, you have the right to send the available materials, which will be considered by the Kurgan OFAS Russia on your own initiative, since by virtue of Part 1 of Article 39 of the Law on Protection of Competition, the basis for initiating a case a violation of the antimonopoly law is not only a statement by a legal entity or individual indicating signs of a violation of the antimonopoly law, but also the direct detection by the antimonopoly authority of signs of a violation of the antimonopoly law.

• On 02/09/2018
• 0 Comments
• 223-FZ, 44-FZ, EIS, Purchase of medicines, medical equipment, Purchases from a single supplier, Request for proposals, Violations in procurement, NMCC, FAS, Electronic auction

Violations in the field of procurement concern not only the norms of laws 44-FZ and 223-FZ. In the process of carrying out procedures to determine a supplier, Law 135-FZ “On the Protection of Competition” may also be violated. This happens when procurement participants collude. The goal of such actions is one - to avoid a fair fight for tenders. A participant in the conspiracy may also be executive the customer, in whose interests the victory of a particular supplier is.

What types of conspiracies are there?

Conspiracies can be divided into two large groups:

1. Collusion between procurement participants. It is also called cartel agreement. The goal is to make one of the colluding participants the winner of the auction. As a rule, in subsequent procedures, victory will be given to the next one and so on.
2. Collusion between supplier and customer. The goal is to award the contract to this supplier. The customer's representative, as a rule, pursues his own interests.

Why collusion is harmful

Conspiracies, first of all, cause damage to customers, and therefore - to the budget. It becomes impossible to save on purchases, since in conditions of violation of the rules of fair competition, the choice is severely limited. As a result, customers are forced to buy goods and services at prices that are kept by colluding suppliers.

Registration in ERUZ EIS

From January 1, 2019 to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register (Unified Register of Procurement Participants) on the UIS portal (Unified Information system) in the field of procurement zakupki.gov.ru.

We provide a service for registration in the ERUZ in the EIS:

From collusion conscientious procurement participants also suffer, since competitors are squeezing them out of the tender competition with their actions (the “Taran” scheme).

Mechanisms for implementing conspiracies

Cartel agreements

Collusion between participants can be realized through a variety of schemes, for example, “ramming”, refusal to tender, submission of a non-competitive bid and others. Let's briefly talk about some mechanisms

1. "Ram". Two dummy participants by dumping, making room for the third. Subsequently, they are removed from the race, and victory goes to the third of the conspiring persons.
2. Submitting a non-competitive proposal. Formally, there are three participants in the procurement. However, in practice, only one of them submits an actual application. At the same time, he indicates a price slightly lower than NMCC. The rest of the colluders do not take any action at all or submit obviously losing bids based on prices or conditions.
3. Use of robots. Auction procedures use special software to automatically place bids. Robots are customized based on the goals of colluding suppliers. For example, to submit applications with a certain price increment, to support the price at a certain level, etc.

The use of auction robots has recently become a very popular practice. At the end of last year, the FAS opened a case for violations related to the use of auction robots at medical auctions. The programs were configured to maintain the contract price at a high level. The total amount of purchases exceeded 145 million rubles.

How can recognizing a cartel agreement help?

Learning to recognize supplier collusion will be useful for any procurement participant. This will give you several options:

• save your own time without wasting it on dishonest procedures;
• file a complaint with the FAS about illegal actions that violate antimonopoly legislation, thereby making your own contribution to the whitewashing of the procurement sector;
• use this knowledge in your own interests, that is, understand the scheme and try to benefit from it (possibly in the “Bram” scheme).

Collusion between customers and suppliers

Often a customer representative is involved in the conspiracy. In such cases, the schemes imply a desire to win the supplier, with whom, for one reason or another, the customer wants to conclude a contract. Such conspiracies are more difficult to detect because their signs are not so obvious.

In such conspiracies the violation lies in the actions of the customer when preparing procurement documentation. A variety of mechanisms are used, some of which we will consider below.

Hiding a purchase

The purchase is hidden from prying eyes. The goal is to ensure that as few participants as possible apply. An incorrect description of the procurement object, an incorrect OKPD2 code, and so on are used. The search parameters are communicated to the supplier.

Traps for the inattentive

By drawing up documentation, the customer tries to confuse suppliers. It is written in volume technical task saturated with many parameters that are described using words "no less", "no more" and so on. Counting on the fact that the supplier will be inattentive, at some point the customer reverses the values ​​of these parameters.

If the participant does not notice this, his application will be rejected due to non-compliance with the requirements.

Unrealistic contract terms or low price

The customer establishes in the documentation the requirements for the performance of work under the contract, indicating a too short period or a deliberately low price. Conscientious participants pass by - they understand that it will not be possible to fulfill the contract under such conditions. The secret is that part of the work has already been completed the same supplier whose victory the customer strives for. It is clear that he short time don't scare him - he submits an application and wins the contract.

“Sharpening” documentation for the performer

When drawing up documentation, the customer adjusts it to the parameters of exactly the product that is produced by the supplier he is interested in. It turns out that similar products from other manufacturers do not meet all purchasing conditions. As a result, there are no competitors. And if someone did apply, it will most likely be canceled due to non-compliance with the requirements.

A favorite area of ​​application for this technique is medical auctions. Medicines have a wide range of characteristics, thanks to which the technical specifications can be “tailored” to the desired supplier.

Such a conspiracy was exposed last year in the Khabarovsk Territory. It was concluded by the manufacturer of the disinfectant, its dealer and the hospital. The regional Ministry of Health was also found guilty. The auction documentation was drawn up in such a way that it followed: only the sole supplier- the mentioned dealer of the antiseptic manufacturer.

Important! To prevent customers from being tempted to use such mechanisms, the formation has begun in the EIS. It unifies the name and description of procurement objects. So far it only contains medicines, but other positions will be added over time. Information from the catalog is already required for use by customers in accordance with 44-FZ when drawing up procurement documentation.

How to fight

Collusion between the customer and the supplier is an unpleasant phenomenon for competitors. However, it is still possible to compete for the contract. Attentiveness and perseverance will come to the rescue. Experts recommend following this plan:

Procurement in the area of ​​interest should search by different keywords and parameters. It is also worth monitoring the procurement activities of interested customers - viewing their planning documents, monitoring current and upcoming procedures. This approach will help find hidden purchases.

When studying procurement documents, extreme care should be taken. First of all, you need carefully study the terms of reference and instructions for filling out the application. Maximum vigilance will allow you to recognize pitfalls in the description of the characteristics of the procurement object.

If the procedure allows, if difficulties arise, you need to submit it to the customer requests for clarification. The answer must come, and to the point.

If in the end it is concluded that the provisions of the documentation or the actions of the customer violate the requirements of the law, you can safely complain to the FAS.

06 June 2017

The head of the Pskov OFAS Olga Milonaets spoke about the scandalous road contracts between the companies of the Kukha brothers and the Pskov administration for almost half a billion rubles on the air of the Besedka program on local radio, reported "Pskov news feed". We provide a transcript of this conversation on the pages of the veteran media in full.

Good afternoon, our guest is Olga Milonaets, boss regional administration Federal Antimonopoly Service. Olga Viktorovna, good afternoon.

Good afternoon.

Today we will talk about the resonant scandal that is flaring up around city road contracts. Let me remind you that next week the FAS department will consider a case initiated on the grounds of a cartel conspiracy. The focus is on the agreement between the Pskov administration and the companies Technodor and UDS Pskov, the founders of which were entrepreneurs associated with the Pskov authorities. I know that the Pskov OFAS has complaints about this contract. What is the essence of the claims, Olga Viktorovna, please explain to us.

I can’t say that this is a scandal for us. This is our ordinary work by virtue of our powers. We actually opened a case of conspiracy between the government and participants in the so-called “road auctions.” Now information is emerging that these are not exactly road auctions. Our UGH believes that this is an ordinary contract for 400 million rubles for washing curbs, for painting various fences and a little, it seems, for hundreds of millions for sealing cracks. Therefore, the customer says: “It is strange that this attracted the attention of the townspeople, and that our control over these auctions has increased.” He tries to present these auctions as something ordinary. But, nevertheless, we have a deputy’s appeal on this issue, and there is a lot of material in the press.

We have taken control of this situation and are now looking into it. It's not an easy matter. Two auctions, one for 264 million, the second for 183 million. The so-called twin firms won in turn. In one auction, the winner was UDS Pskov, which registered 11 days before the auction, and in the second auction, Technodor LLC, which also registered a few days before the auction.

What are we paying attention to now? I think that not only these two companies will be involved in our case. We have now decided to involve all organizations that participated in this auction. We will look at the behavior of each of the organizations, because the auction is quite a tasty morsel. Wash the curbs, paint the fences, somehow repair the cracks in the asphalt. This is the city center, Zavelichye, and Zapskovye

We want to clarify with the companies that also took part why they did not compete, why they did not business proposals. How did it happen that the companies took one “step” at a time, and victory was with these two organizations. We want to see at another auction why all the companies were removed, we will definitely see why they were removed. We will look at how security for the contract was filed for 13 and 11 million. We are undergoing a major review of the entire process.

Olga Viktorovna, in April the Pskov OFAS announced the initiation of a case against the organizer and participants of auctions for the maintenance of roads in Pskov. The department says there is evidence. I'd like to hear what the evidence is.

I can say that we had enough evidence to initiate a case. We initiate all cases based on signs of violations, signs of conspiracy. There are a couple of points, we have already outlined them, which may, under certain circumstances, indicate collusion between the companies and the customer. Those same stories that, strangely enough, were organized in 11 days precisely for these purposes, not yet knowing that there would be an auction. Why do the Kuhi brothers register two companies when there are other organizations that could take part in the auction? And here two offices are created specifically to participate in the auction, without having any technology, equipment, or staff. These are the first “bells”. The second is the behavior of campaign participants. The third thing is that all [applications] were withdrawn. In addition, we conducted an on-site inspection and inspected computers in the Pskov city administration together with the prosecutor’s office. Everything that we are currently processing is not yet ready to bring to the surface. But, nevertheless, we are working on certain evidence.

Do I understand correctly that you are charging under Article 16 of the Competition Law? What kind of article is this?

This is a very proof-heavy article. Collusion between government authorities and business entities. It is clear that other security organizations may also have claims behind this economic clause. Therefore, we must understand the situation very carefully. Was there a conspiracy, or was it someone’s negligence, or an accidental coincidence, or a leak of information that we will or will not be able to prove. Quite serious complaints.

In your work experience, are there any precedents when such processes end in court decisions? Are the perpetrators punished? How difficult is this to prove?

Of course, there are such cases in the FAS practice. And in our practice, we have had such cases, as a rule, when, for example, land plots are provided without bidding to a certain structure and when certain documents are found confirming that the parties have agreed on their actions - both the organizers and participants in the bidding exist. I can’t say that there are very many of them. As a rule, such cases are very successful when they are initiated law enforcement agencies, transmitting some operational data. My colleagues do not often, but such things happen.

And what threatens the violators if guilt is proven? And who will answer - individual or the company itself?

As a rule, this is an official of the customer. In this case, it could be the UGC or the city administration, if there are still culprits. For business entities this is a legal entity. These are turnover fines. As a rule, very large. Percentage from 1 to 15 of the company’s turnover. We see that the companies were formed 11 days before participating in the auction; they have no turnover. The maximum fine that these companies can receive is 100 thousand rubles each. But, as a rule, we transfer Article 16 to law enforcement agencies. According to Article 178 of the Criminal Code, the conspiracy of the organizer and the conspiracy of the participants is sanctioned, and there the sanction is up to 5 years in prison.

The worst thing is that a criminal sentence cannot be ruled out.

Moreover, the amounts are decent. Our neighbors in the Novgorod region 4 or 5 years ago road works at a cost of just over 100 million, and the damage to the state was calculated precisely at the cost of the contract. People received real sentences, both from economic entities and from government agencies.

That is, both the customer - someone from the Pskov administration - and the direct executor - the founding company - could face a criminal sentence?

Yes, this is natural if this composition is proven.

Olga Viktorovna, have you had complaints about the company with the same founders before or is this the first time such complaints have been made?

There were certain complaints, but not about these participants. These founders were not found to have colluded. Naturally, we are now checking these facts, how the companies of these owners have participated in auctions for the last 2-3 years. We are now analyzing all this information.

You just cited the example of our neighbors and voiced one of the cases. I remember the statement of the Federal Antimonopoly Service that the road industry is one of the leaders in cartel agreements. Is it so?

Our central office, naturally, analyzes all the information. I think this is due to the fact that the biggest money in this industry and the biggest damage to the state is established in this market.