Anti-dumping measures in public procurement: definition of dumping. Price dumping - what is it in simple words and how to deal with it

Dumping in the field of public procurement is understood as a participant's pricing policy, which provides for an intentional understatement of the proposed contract price by 25% or more. Of course, there are participants who are ready to work without profit or even at a loss in order to "light up" in the procurement market and prove themselves. However, in most cases, a significant price reduction leads to unpleasant consequences for the customer.

What dumping can lead to

So, deliberate dumping can turn into unpleasant situations for the customer.

1. The winner's refusal to conclude a contract that is unfavorable for him and, as a result, the need to conduct the auction again.
2. Unfair execution of the contract, the use of low-quality cheap materials in the performance of work / provision of services and, as a result, the need to terminate the contract unilaterally or in court.

In any of these cases, the evaded would-be winner will end up in the register of unscrupulous suppliers, but this is not always a consolation for the customer. After all, precious time is lost irretrievably. In order to avoid such situations, Federal Law No. 44 provides for the anti-dumping measures specified in Article 37.

What are anti-dumping measures and what they can be

Anti-dumping measures are measures that prevent the situation of deliberate understatement of the contract price by participants with bad faith intentions. They are defined by parts 1 and 2 of Article 37 44-FZ and may be of the following nature:

1. For purchases, the initial maximum price of which exceeds 15,000,000 rubles - an increase of 1.5 times in the amount of the security for the execution of the contract.
2. For "inexpensive" purchases, the initial price of which is less than or equal to 15,000,000 rubles, there are two types of anti-dumping measures, at the choice of the participant: confirmation of good faith or transfer of a 1.5-fold increase in contract performance.

How to prove your good faith

How to prove their good faith is one of the most important questions that arises among participants who are faced with anti-dumping measures. The list of documents required for this is determined by Part 3 of Article 37 of Federal Law No. 44. A "kit" can consist of:

• information on three (as many as possible) contracts executed within a calendar year prior to the application submission without violations;
• information on four (as much as possible) contracts, two calendar years before the date of application, while 3/4 of them must be executed without recorded violations;
• information on three (as much as possible) contracts executed three calendar years prior to the application submission without violations, with high quality and on time.

All information that participants provide to confirm their good faith intentions must be contained in the register of contracts. In addition, not all contracts will be suitable - only those whose price is at least 25% of the one proposed within the framework of this purchase. A sample of information provision can be downloaded.

When to provide information related to anti-dumping measures

Antidumping measures are envisaged in the framework of electronic auctions and tenders. In the first case, a set of documents proving the good faith of intentions must be provided when signing a draft contract. Otherwise, he will be considered unsigned, and the participant - evaded the conclusion.

As for the competition, the participants offer a price in advance, therefore, documents confirming good faith must be provided as part of the application. Otherwise, it will be rejected.

Exceptions to the rule

The law provides for several cases when special anti-dumping measures are applied or they are not applied at all. The latter is possible in the case of the procurement of essential medicines. Their marginal price is determined by the government and 25% is calculated not from the initial maximum contract price, but from this marginal price. If the participant lowers it by less than 25%, then there is no need to confirm their good faith.

If the participant reduces by more than 25% the price for the supply of goods required for uninterrupted life support, then, in accordance with part 9 of Article 37 of Federal Law No. 44, he will have to provide documents confirming that he can really confirm the delivery at the proposed price: letters from manufacturers, invoices confirming the availability of goods, and so on.

3.875 Rating 3.88 (4 Votes)

Price wars are far from uncommon in a market economy. Today we will talk about dumping and when to use it in your business.

What is dumping

Dumping (from the English dump transl. To dump, dump) - the sale of goods and services at a price below market. Often sellers reduce prices so much that they sell goods at a loss. Dumping is used to compete for the redistribution of the market; dumping can also help to quickly raise trade turnover and get more revenue.

Dumping is a kind of gambit in the world of marketing, today you are deprived of profit, expecting to get the whole market tomorrow. The whole calculation is made on the fact that the competitor will not withstand the price race and will simply leave the market. Typically, a dumping strategy is used when a new major player enters a formed market.

It should be noted that dumping is prohibited at the state level. The World Trade Organization (WTO) provides protective mechanisms that a state can use to protect its domestic producer. Although dumping is beneficial for the end consumer, it can cause significant damage to the country's economy, leaving people unemployed and depriving the state of tax revenues.

Dumping types and applications

In the legislation of developed Western countries, two types of dumping are spelled out:

1. Price dumping is when the price for a product going for export is lower than the price for the same product in the domestic market. Manufacturers often try to circumvent this prohibition by introducing minor differences in the product.
2. Cost dumping is when a product is sold below cost.

By dumping, a company can achieve completely different goals. You need to understand that cost reduction is an extreme measure and just like that, no business will go for it.

Sporadic dumping

Sporadic dumping is a reduction in the cost of a product to quickly get rid of excess inventory in warehouses. This situation may arise due to the fact that more goods are produced than they are consumed, stopping production can be more expensive than reducing the cost. It also often happens that the goods are stuck in the warehouse and its further storage will lead to financial losses.

Intentional dumping

Intentional dumping - lowering export prices to drive out competitors from the market. The main goal is to become a monopolist in the market. This type of dumping is not long-term and, as a result, can lead to higher prices for the consumer.

Permanent dumping

Permanent dumping is the constant sale of goods below cost. This type of dumping often occurs to drive traffic and sell related products to the customer. That is the business to learn.

Reverse dumping

Reverse dumping is when the price of a product in the domestic market is lower than its export value. Most common in energy supplying countries. It may also be associated due to fluctuations in the exchange rate.

Mutual dumping

Mutual dumping is countertrade of two countries in the same product at reduced prices. It is also rare in conditions of high monopolization of the domestic market for a particular product in each of the countries.

Dumping examples

Dumping has a rich history and its consequences have had both positive and negative effects on the initiator.

Vnukovo Airlines

By the end of 1997, this company was one of the leaders in the Russian market. But in the summer of 1998 the company decided to win back the positions of Siberia and KrasAir in the southern directions. As a result, within a few months the air carrier did not even have the means to refuel the planes. And a few years later the company went bankrupt, and its property went to the same "Siberia". That is, we can say that here the dumping factor has clearly played not in favor of the initiator.

Sony

In the 70s, Sony entered the American market with its TVs, selling them 40 percent less than in its own Japanese market. Such dumping methods did not please the government of the country, and the company was held accountable. But here the manufacturers did a really ingenious thing: they opened production in the United States and stopped importing from Japan. In the states, completely new models were produced, which made it impossible for the American authorities to compare prices. Thus, as a result of this dumping, the initiator company won, because it strengthened its positions in the American market and retains them to this day.

Nissan

There is a known dumping case on the auto market several years ago. Then the Nissan company actively placed its production in the territories of European countries. This led to the fact that the prices for their products became much lower and the company was able to sell cars at lower prices in comparison with importers from other countries. This dumping of Nissan caused a wave of aggression and a number of legal proceedings. But as a result, all charges were dropped from them.

Antidumping or Antidumping Measures

Naturally, most states protect their domestic producers and try by all means to combat dumping. The easiest way to anti-dumping is to increase import duties. Russia followed this path, due to high import duties, many manufacturers were forced to build factories in Russia.

There is also judicial practice to combat dumping. One of the most famous precedents was the case when the US sued companies from Japan, Mexico and Venezuela for selling cement. The price of the commodity in the states was lower than the price at which the companies sold cement on the domestic market.

In contact with

classmates

In this article, you will learn:

• What is price dumping and what are its signs
• What legislative acts regulate price dumping
• What are the types of price dumping
• What are the pros and cons of applying price dumping
• What are the ways to deal with the dumping of competitors

When a product is offered to the consumer at minimal prices, sometimes even below the cost price, there are good reasons for that. Among them are attracting a consumer audience, and sales growth, and the expiring shelf life of a product, and a competitive advantage for the sake of winning a government contract. There is another most important reason for price dumping - the company's management seeks to bail out the maximum financial resources in the event of bankruptcy. Using this method, you can get a very good profit, but a balanced approach is needed here, since the risks are also very high.

What is price dumping

Dumping they name a phenomenon in the economy when, for existing reasons, a company artificially lowers the cost of its products so much that it becomes cheaper than the initial costs for it. Price dumping can be a tactical move against competition or a forced measure applied when an organization is unable to pay taxes.

Dumping prices and lowering the cost of goods should not be confused, these are different phenomena.

There are certain peculiarities, by which it is possible to understand that the company is currently pursuing the specified policy:

• First of all, the dumping of prices in the firm is carried out in relation to competitors, and in some cases for other reasons leading the organization to bankruptcy.
• At the time when the company implements such a pricing policy, it cannot give a quality guarantee to its customers, the issues of the proper level of service are also not raised.
• An important detail that distinguishes dumping is that the organization reduces the cost of its goods or services of its own free will without any outside influences.

There is a certain list of conditions for lowering prices, under which they will not be considered dumping, for example:

• as part of a well-thought-out marketing move with any promotions;
• the firm has made a decision to re-profile its business;
• falling cost of production costs;
• reduction in the amount of costs for providing goods turnover and advertising.

What regulates price dumping in Russia

Measures against price dumping in the Russian Federation are reduced to the collection from the exporting entity of compensation for damage to the Russian industry in favor of the manufacturer, which is implemented through an additional duty.

Anti-dumping duties

The rates for such a fee are set each time on an individual basis. It is not automatically appointed, but is charged only following an investigation in order to confirm the fact of price dumping, and most importantly, to identify the economic damage from the importing side to the entrepreneur. The application of anti-dumping temporary duties is a kind of warning that more serious measures will be taken against the exporting entity. We are talking, for example, about constant collection, it entails significant losses of the company or even its withdrawal from the market. In addition to the listed anti-dumping measures, one is also used when the exporter undertakes to fulfill the lowest price level ("normal cost") or to limit the amount of supplied products. In a number of countries, price dumping is prohibited.

44-FZ "On the contractual system in the field of procurement of goods, works, services to meet state and municipal needs" dated 05.04.2013

In order to protect consumers from unscrupulous performers, provisions were included in 44-FZ against price dumping of competitors. Alas, government customers often faced a situation when the supplier who won the tender received an advance payment and disappeared or simply did not fulfill the points prescribed in the contract. Since 2013, performers must confirm their own decency and competence.

The winner at the 44-FZ auction is selected based on the only criterion - a low price. When the cost decreases from the initial maximum contract price (NMCK) by more than 25%, the following measures are applied:

1. If the NMCK is above 15 million rubles, you need to pay the insurance amount, confirming the implementation of the contract, 1.5 times more than the cost.
2. When NMCK is less than 15 million rubles, there are two options:
3. also increased payment of contract performance insurance by 1.5 times;
4. providing information confirming that the supplier is good faith and competent (identical contracts).

If we are talking about food products, medicines, means for the provision of emergency and medical care, oil products, the executing person is obliged to provide a justification for the amount of the contract in order to avoid price dumping. Otherwise, if the information was not provided, this organization is entered into the register of unscrupulous suppliers (RNP).

Article 37 helps to reduce the risks of customers on the part of the state, but not eliminate them. The number of unfulfilled contractual agreements, litigations of companies included in the RNP, services that were provided with inadequate quality (road repairs, construction work, etc.) indicate that it is necessary to revise the criteria when choosing a supplier.

What types and forms does price dumping have?

Now the economy distinguishes two kinds dumping prices:

• temporary;
• constant.

When it comes to a temporary measure, we mean a phenomenon in the economy of an enterprise, when the cost reduced to the limit is set by the manufacturer for a short period of time: from a couple of weeks to several months. To achieve the main goal, such a policy is ideal.

Permanent dumping means a situation when low prices are artificially set by the manufacturer for a long time: from a couple of months, but maximum up to a year, otherwise the company will simply go bankrupt.

In addition to the above types of cost regulation, there are also various of its shape arising as a result of all sorts of circumstances, which will be discussed below.

• Sporadic dumping. When using this tool, the prices for a certain part of the company's products are reduced as much as possible. As a rule, we are talking about surplus, marriage or the so-called mis-grading. The success of the method directly depends on the prices of the domestic market - when they are lowered, the entrepreneur cannot fully sell his goods and suffers losses.
• Intentional price dumping. With such a policy, the company lowers the cost of products on its own, based on the main reason - the elimination of competition in its niche of goods and services. At the same time, it is trying to become the only player in its market, in fact, striving for full or partial monopolization. It often happens that a company lowers prices not just below the cost, but even below all costs. This is undoubtedly a big risk, but with success, the organization reaches a completely different economic level.
• Reciprocal dumping of prices. Under this form of value regulation, a number of countries present certain products on the market at the same low prices. This policy is actively supported by the European Union, especially since it is relevant only in certain temporary periods. This kind of instrument is favorable for both exports and imports, and countries use it to establish their trade relations.
• Permanent dumping. Here, the minimum cost of products for the buyer is set before the complete liquidation of the goods, and it is always not higher than production and advertising costs.
• Reverse dumping. With this format, the cost of imported products is higher than the prices on the domestic market, and we are talking about the same product. For example, consider a picture when the Russian Federation imports gas, while some European countries resell it to Western countries at a much higher price.

Note that such types of price dumping as reverse and reciprocal are extremely rare. After all, the first can easily raise a wave of bewilderment, and the second can easily lead to the loss of one or both countries. For these reasons, such forms are used very rarely and when urgently needed, for example, in a financial crisis.

When is price dumping applied?

The dumping price is used due to:

• financial sector resources;
• subsidies from the state that are provided to exporters.

Dumping prices in public procurement is not just a deliberate reduction in the cost of a product, but also a kind of discrimination in certain niches, where the cost for one sales channel is significantly underestimated and at the same time overstated for another. So, the use of such an economic instrument as dumping leads to monopolization of markets and the use of unreasonably increased prices.

Dumping prices makes it possible to ensure, first of all, the benefit of the exporting organization, because it now has the opportunity to increase its share in international sales. At the same time, all expenses in the domestic market are compensated. So, it turns out that the total sales are growing and the company is making additional profits.

Dumping prices can be applied in the following cases:

• To occupy a niche

The company comes to a new region, and the market is already divided between local players - in this case, price reduction is justified. In practice, one can see how in large federal networks of household appliances, cosmetics, mobile operators, the trust of buyers was won by the fact that organizations invested heavily in advertising and used dumping of competitors at prices, informing the consumer that everything is offered practically for nothing.

• Get a client into the piggy bank

This technique is used by organizations working in the fields of B2B and B2G. In contrast to the B2C segment, especially in retail, where it is necessary to maintain the illusion of "low cost", commercial and government demand has its own concepts of pricing.

Providing a product, providing a service or performing work for a key client makes it possible to gain trust, increase the rating and develop the company. Dumping prices here can be implemented for the possibility of providing a letter of thanks from a serious corporation on the site, or, for example, placing a logo in the "Work experience" section.

Gold mining firms, oil and gas companies, large federal structures often buy goods from small and medium-sized businesses at minimal prices.

• Seller affection

There are very strong business connections that are dear to the seller. In these cases, price dumping is not uncommon. Despite the fact that the sale of a product or service at a lower value can be damaging, the supplier does not give the client to another organization.

• To unload the warehouse

The company bears certain expenses for the storage of goods. It happens that the planning department recruits a category of goods that is extremely slow to be sold. Sometimes it becomes more profitable to sell stale products cheaply by dumping prices than to wait for better times. This tactic is often used by food manufacturers and software distributors.

• Grab a piece

In times of crisis, small business entrepreneurs have to get out of their way to fully provide a bank account with cash. If we analyze purchases under 44-FZ, we will notice a tendency towards price dumping by 50-70% in small businesses (SMEs). Typically, this method is used by young companies with an annual turnover of up to 30 million rubles.

• Feed buyers

When the market is already saturated, the assurance that it is possible even cheaper than it is now attracts retail customers. Consider, as an example, the now very popular online store of Chinese products, which, when entering our territory a couple of years ago, greatly reduced the cost of non-food products, that is, applied price dumping. Souvenirs, items of clothing, shoes, toys, household appliances and so on were delivered to the residents of the Russian Federation for nothing. Over time, prices rose, but the consumer who came from American and European online stores remained.

What are the pros and cons of price dumping

It may seem that price dumping is, on either side, a beneficial phenomenon in the economy. Lowering the cost of a product enables people to purchase items that they could not afford before.

First of all, let's see what are dumping advantages:

• This technique can be useful for small businesses or newbies. Every entrepreneur faces a lot of difficulties at the beginning of his activity, because the market in most cases is already occupied by similar companies that have firmly settled in their niches. Dumping competitors with prices gives good chances for newcomers to enter the market segment and gain a foothold in it.
• Also, by reducing the cost of goods and services on the market, it is possible to "push" any new product, which may initially be viewed with distrust by the consumer. However, lower prices will play a role, and curiosity will prevail. In addition, dumping can stimulate the sale of any other product, attracting attention to it at an ultra-low cost. Also, a company that has begun to pursue such a policy can significantly reduce its advertising costs, since at lower prices the product promotes itself.
• And the undoubted plus of dumping is that it does not require any expenses. With a favorable outcome, that is, with the sale of all goods, the company will face a new stage of development.

However, the price dumping of competitors has its own minuses:

• First of all, a significant decrease in prices, especially if they fall below all costs, will necessarily affect the company's income. Naturally, dumping will be followed by a drop in profits at times, however, with the sale of all products in accordance with plans, this money hole can be reduced, or even completely circumvented.
• In addition, prices are usually dumped by one company in the niche of a particular product. Of course, this is unlikely to appeal to competitors. Prepare to take a hit, as a price crash in one organization may well be followed by a sharp drop in the cost of production in another. Such a turnaround could negatively affect the firm that started dumping first.
• It is also important to understand the fact that a consumer who is delighted with low prices may still begin to suspect the product is of poor quality. When the dumping is over, some of your customers will not even look at this product, considering it low-standard, and the cost prohibitively high. In general, the further path in business, both small and large, depends on the actions that the organization will take after the price of the goods returns to the original one.

What could be the reaction of customers to price dumping from a competitor in wholesale

If you, as a current or potential contractor, were informed by the client about the dumping of prices from competitors before entering into a contract, this is very good. This means that for this client you are more than a regular supplier of a product, and he seeks to maintain or build relationships with you. Let's see how partners can react to a competitor's prices that are lower than yours.:

• Hooray, we are choosing a different supplier!

Apparently, this client is not yours. Or you just don't know how to work with customers.

• Give me the same low prices as the competitor.

These extremely difficult situations can have a number of reasons. In one case, your client is qualified enough to reasonably demand price dumping from you. Without serious consequences for himself, he may simply stop working with you, either in the long term or right now. When you do not have substantiated substantive counterarguments that in the foreseeable future this client will not be profitable to do business with you, then most likely these are your previous shortcomings in the relationship with this partner. In the same case, when your product is no better for the customer than the competitor's, your miscalculations are also the reason.

• Why are your prices higher? How are you different from cheap?

When the client is constructive, it is always pleasant. After all, a clear, business-like point of view makes it possible to correctly position yourself in relation to a competitor and lay the foundation for a strong relationship.

• So what if prices are lower somewhere?

In this case, your relationship with the customer is so favorable that dumping prices from competitors will not be a problem for you.

5 rules for those who decide to arrange price dumping

Rule # 1. Don't cut prices just because everyone else is doing it. However, the reality should not be ignored. Typically, salespeople are the first to tell salespeople about a drop in prices, and they ask their bosses to take action. In this case, the management first of all checks the accuracy of the data received.

For example, ask your customer: "Which company has lowered the cost and how much?" In the event that the client does not name the company, such information about the price dumping of a competitor should be considered unreliable. And if the buyer pointed to the organization, you need to further find out the truth.

It is worth talking with other consumers after analyzing the dynamics of their purchases in the company (has their volume fallen?). You can also use competitor intelligence techniques, such as trying to communicate with them on behalf of a fictitious firm. If the information is confirmed and when other methods do not work, then price dumping is inevitable.

Rule # 2. Get creative with price cuts. A creative approach does not imply any algorithms, but there are some working ideas, for example, the principle of asymmetry. It can be implemented in dumping as follows: the company does not lower the cost of the same product as that of a competitor, but of the one that brings him the greatest profit. By doing so, you will strike a blow at the core of your opponent's financial stability, and he will be forced to reflect on how expedient it is to continue this price war.

Rule # 3. It is about a sale. Each sale must have an objective reason, and it must also be strictly limited in terms of time. Otherwise, your customers perceive the reduced prices not as temporary, but as permanent. It will be very difficult to increase them in the future.

Rule # 4. Only cut prices in a mature market. We can speak of unsettled economic relations in the case when the suppliers are not determined, there are no permanent buyers yet, as there are no channels for the dissemination of information between them. Dumping prices in such a situation is extremely unreasonable: the consumer will not know about your actions in a timely manner.

Rule # 5. Make sure the end user benefits. This, however, is not often achieved with price dumping. But if possible, try to make sure that discounts do not settle with intermediaries. They should be received by your partners in order to increase the purchase volume by attracting new customers and increasing sales to your regular customers.

In other words, you need to ensure that the intermediary, that is, your client, has income from turnover, and not from profit.

It is also worth paying attention to the following. When the value of a certain product in the market is steadily declining due to price dumping by some competitors or for other reasons, then you probably should also lower it. However, before doing this, try to come with the customer to the following option: the amount of your contract remains unchanged, and you increase the number of products. In the event that your partner agrees to such conditions, you increase sales in the company and improve the sales structure for this client.

How to respond to price dumping from competitors

Having understood the motivation of the firm applying this strategy, and the reaction to this situation of consumers, it is realistic to predict the most likely consequences. Dumping prices can lead to both negative and positive results.

Operational measures

The strategy for countering price dumping depends more on the motivation of the company using this method than on the perception of the decrease in the cost of goods by your customers. After all, buyers do not always have the opportunity to quickly change a supplier, despite their interest in this. They do not often manage to quickly receive data on new interesting offers. As a rule, customers do not make quick decisions, as they are interested in the stability of supplies, long-term cooperation. Nevertheless, sellers, as a rule, receive information rather quickly about the affairs of competitors, including about price dumping, and they are simply obliged to predict the further course of events several steps ahead, trying to avoid unpleasant turns for the company as much as possible.

Therefore:

1. When a competitor leaves the market, it should be considered a favorable event. The remaining companies (in the presence of financial stability) only need to wait out the season of price dumping, avoiding panic among the key players in their segment of goods and services. While you are unlikely to be able to persuade the departing organization not to use these tactics, it is very likely that you will be able to join forces with other suppliers to develop adequate measures. This is many times more effective than trying to deal with a competitor's price collapse alone. The right step will also be your desire to attract a manufacturer to solve the current situation.
2. When a newcomer is looking for his place in the market, you need to assess how a newly emerging competitor is able to disrupt the implementation of plans for your particular company. It is very likely that, for a number of reasons, this company will be able to weaken your common opponents (but not you) by applying price dumping. This should definitely be considered a good factor.
3. In the event that the dumping attack is aimed specifically at your organization (or at you and other firms), then you will have to act quickly and in accordance with the laws of wartime. Promptly, on all the weak links of the new competitor, attract possible allies, remaining, however, within the framework of the right field.

Strategic measures

When developing a strategy, pay close attention to how customers perceive a competitor's price dumping and your company as a supplier with a higher cost bar. Ask your customers why they are now cooperating with you and whether they have plans to continue the relationship after a year, two, three. Of course, your goal in this will be that the price is not the main factor influencing the client. This will give you the opportunity to consider not only the problem of price dumping of your competitors for granted, but also bring stability to the overall development of your organization.

To separate your products from identical ones, without significantly lowering the profit margin, it is important to understand what exactly the client values ​​in the relationship with you, not counting the product or service itself supplied to him. You can then convert this value into additional income. This kind of work should be done gradually, while continuously analyzing the relationship between your competitors and their customers.

Techniques for eliminating the problem of price dumping have already been created and are available to most successful organizations. And if he still bothers you in some way, then it’s time, apparently, to stop working according to the usual patterns. Now is the time to take a closer look at the technologies of cooperation with clients that are used by market leaders.

The tenderer sooner or later comes across dumping in the state order. The very phenomenon of dumping has existed in the field of tenders for a very long time, practically from the moment of the establishment of the institution of public procurement in Russia. The concept of "anti-dumping measures" in the state order appeared not so long ago, namely after the adoption of 44-FZ. In the law No. 94-FZ, which was in force before 44-FZ, such a concept was absent. At the same time, in practice, of course, there was dumping in the state order, but the government did not try to combat this phenomenon in any way. What is “dumping” in the state order at the moment and what methods of combating this phenomenon are used? Let's try to figure it out!

What is dumping in government orders?

The word dumping is borrowed from the English dumping, in translation dumping (sale at artificially low prices). Most often, dumping prices are below market prices and even below cost. To understand the nature of this phenomenon, let's look at the reasons for using dumping in tenders:
1. The entry of the supplier to the market, which is already divided and there is no other way to get to it.
2. Receiving an order from a specific customer in order to start cooperation with this customer for the purpose of upselling related services, works, as well as reaching larger contracts.
3. Obtaining new contracts and obtaining the necessary qualifications to participate in large competitions, requests for proposals.
4. Game according to the rules established by the state, where the price indicator is the most important in public procurement and in most cases decisive.

What all these reasons have in common is that the supplier, working at a negative or zero, plans to make a profit or some preferences in the future. In addition, one should not forget about the Russian reality. At the moment, the state has created a public procurement system, in which the supplier who offers the lowest price has more chances to win. This is true both for auctions and for tenders and other methods of procurement. In the overwhelming majority of purchases, the significance coefficient is higher for the criterion "Price" than for other evaluation criteria.
Despite the fact that the state has created conditions for the development of dumping in the state order, it has also created anti-dumping measures to combat this phenomenon. Let's take a closer look at this tool.

Antidumping measures under Federal Law 44: what are they?

Dumping in 44-FZ means a decrease in the participant's price offer by 25% or more of the initial (maximum) contract price. That is, if the purchase limit is 1,000,000 rubles and the participant's price offer is 750,000 rubles or more, then such an offer is recognized as dumping, if the supplier offers 750,001 rubles, then by law it is not dumping. Got a fine line? One ruble or even one kopeck may affect whether the proposed price is recognized as dumping or not. Of course, this approach is formal and has an indirect relationship to the market. The government order market has its own rules and these rules 44-FZ. Let's take a closer look at anti-dumping measures for 44 FZ.

Two situations are possible:

Option # 1 Purchase price (NMC) of more than 15 million rubles.
In this case, according to Part 1 of Art. 37 44-FZ if the price of the winner of the purchase is dumping and is reduced by 25% or more, then the customer concludes a contract with such a participant only after the winner provides the contract with a coefficient of 1.5. But at the same time, the amount must be no less than the amount of the advance (if the advance is provided for in the procurement documentation and in the draft contract). That is, a procurement participant, offering a price of 25% and lower than the price from the NMC, should be ready, in case of victory, to provide a contract security at 1.5 times higher. The participant can choose to provide security for the contract, either in the form of a bank guarantee or by transferring funds to the customer's account. Of course, most often the supplier chooses collateral in the form of a bank guarantee.
Option # 2 Purchase price (NMC) less than 15 million rubles.
In this case, the procurement participant has a choice:
- provide security for the contract with a coefficient of 1.5 (as in the option above)
- provide as part of the application documents confirming the conscientiousness of the supplier on the date of application.

IMPORTANT: documents in good faith must be submitted as part of the application for the competition, that is, before the winner is determined. If you participate in an auction, then such documents are provided together with the signed contract.

Information confirming the good faith of the supplier.

Let's consider what is meant by "good faith" of the supplier "and supporting information.
The good faith of a supplier is understood as a confirmed fact of the successful execution of contracts with government customers. That is, such contracts must be completed and information about such contracts must be contained in the register of contracts.
In addition, the conditions for the limitation period of such contracts, the number and presence or absence of penalties must be met:
Option number 1: 3 or more contracts within 1 year prior to the date of application, no forfeit.
Option number 2: 4 or more contracts within 2 years prior to the date of application, 75% of contracts without forfeit.
Option number 3: 3 or more contracts within 3 years prior to the date of application, no forfeit.
At the same time, the price of one executed contract must be at least 20% of the participant's price offer in the procurement procedure.

IMPORTANT: Please note that contracts confirming good faith must be entered in the register of contracts. The fact of entering such a contract into the register must be verified independently. Contracts that are not included in the register of contracts cannot be used by participants as information confirming good faith. If the concluded contract is not in the register, then contact the customer to clarify the reasons. Entering contracts in the register is the responsibility of the customer, who also bears administrative responsibility.

In practice, information confirming good faith can be provided by the supplier in the form of a certificate with a list of contracts that meet the requirements of Option No. 1,2 or No. 3, which we have discussed above. In such a certificate, the procurement participant can also indicate a link to entries in the register of contracts. As a confirmation of the information, the supplier can attach printouts from the register of contracts, as well as copies of the executed contracts and acts themselves (the participant must submit a certificate, the rest is at his discretion).

In some cases, the customer may recognize information confirming good faith as unreliable if:
- the participant provided information on good faith on unfinished contracts
- the information provided on contracts confirming good faith is absent in the register of contracts
- the requirements for the number of confirming contracts, the term, the absence of a forfeit (in accordance with options 1,2,3 discussed above) have not been met

This situation can have far-reaching consequences for the supplier with the entry of the participant in the register of unscrupulous suppliers, in the event of participation in an electronic tender. If the customer reveals inaccurate information in an open tender, the participant will get off by rejecting the application.

Antidumping measures under Federal Law 44 and special cases.

Option number 1: If the Customer holds a tender for the performance of research, development or technological work, then the tender documentation may provide for various criteria for evaluating applications with a reduction price of 25% or more from the NMC and less than 25% from the NMC. For example, a participant in such a competition reduces the price by 25% or more, in this case the Customer lowers the coefficient of importance for the price offer and sets it equal not to 60%, but 30%, for qualification assessment the coefficient will become, for example, not 40%, but 70% ... Thus, the application of the "dumping" participant will be evaluated in such a way that it is not profitable to offer a lower price, since the participant in this case is guaranteed to score fewer points. These figures are indicated for example and it is natural that the customer must write down the coefficients of significance and the conditions under which they will be applied in the procurement documentation.

Option number 2: If the customer purchases goods for life support (food, first aid equipment, fuel, etc.), then the participant, in addition to 1.5 times the contract security (or information confirming good faith), must justify the reduction in the price offer by submitting:
- a letter of guarantee from the manufacturer (with the price and quantity of goods)
- documents that confirm the fact that the participant of the procedure has the goods
- other documents

Option number 3. In some cases, anti-dumping measures cannot be applied at all, for example, in the case of purchasing drugs that are included in the list of essential and essential drugs (such a list is approved by the Government of the Russian Federation). But the price of drugs should be reduced by no more than 25% relative to the maximum selling price registered in accordance with the legislation of the Russian Federation.

Option number 4: Anti-dumping measures are also not applied if the customer has not established a requirement to enforce the contract. Establishment of the requirement to secure the contract is the responsibility of the customer and in some cases the customer has the right not to establish the security of the contract. In this case, the supplier does not need to provide the security for the contract, provide information confirming good faith as part of the application or provide the security for the contract with a coefficient of 1.5.

Was there a dumping?

We have analyzed in detail the anti-dumping measures for 44 FZ, considered in all the nuances the supplier's conscientiousness, methods of confirming the conscientiousness. Now let's ask ourselves how effective are these measures proposed by the authors of 44-FZ? The point is that the initial maximum contract price (NMC) was proposed as the starting point in determining the dumping price or not the dumping price. But, as the practice of the NMC shows, the customer can form and justify absolutely any, that is, it is not a market price. If the NMC is 1,000,000, this does not mean at all that the real cost of goods, works, services is the same, that is, 1,000,000 rubles. Naturally, the customer is interested in the procurement procedure taking place. Therefore, it is beneficial for the customer to form an NMC above the real cost. This situation with the formation of the NMC is also beneficial for the supplier, who, when participating in the purchase, has the opportunity to "drop" the price and compete for the order. Thus, it can be concluded that the supplier's price reduced by 25% or more from the NMC may not always be really dumping. The mechanism, which is laid down in 44-FZ to combat dumping, cannot be called effective and well thought-out.

But it should also be noted that the customer himself can create conditions for combating dumping, for example, by choosing a procurement procedure in which it is possible to set a significance coefficient at a price of 30%. As practice shows, the customer himself is not always interested in fighting dumping, since in today's unstable realities the lowest contract price is the most important factor when choosing a supplier.

It should also be understood that too low a cost can cause poor quality of the supplied goods, works, services. Customers and suppliers should try to find and find a middle ground in this difficult issue.

An unscrupulous supplier who issued a lower price for the customer in an auction or tender could win. But after the adoption of the described law, anti-dumping measures were taken, which means that each performer will be checked if he offered a price lower than other participants.

Art. 37 of Federal Law 44 consists of 12 clauses. The last changes in the article were made on June 4, 2014, when the Federal Law No. 140 was adopted. With the latest amendments, paragraph 12 was added to the article. 37 The article describes the conduct and use of anti-dumping measures during procurement auctions and tenders.

First point. When the amount of the contract is 15 million rubles or more, and the procurement participant (buyer) proposes to change the price by 25% lower, anti-dumping is applied. measures. This means that the contract can be signed and implemented only if the participant who offered the price reduction guarantees the execution of the order by increasing the monetary guarantee by one and a half times. The conditions are described in detail in the contract. If an advance payment is indicated in the contract, then the amount should not be less than it.

Part 2 of Art. 37 Law 44 described the same situation as in the first paragraph. When the NMCK is 15 million rubles or more, and the buyer offers a price lower by 25% or more, anti-dumping measures are applied. Unlike the information drawn up in the first paragraph, in the second paragraph, instead of a monetary guarantee, the participant is asked to provide special documentation confirming his good faith. The papers must be new, up-to-date at the time of signing the contract.

In the third paragraph of the described article, information is drawn up about the securities provided by the participant in the transaction to confirm his good faith. The information that he provides to the other party to the transaction must be registered in a special register and meet certain requirements.

Among these requirements:

• The supplier must fulfill within one year from three or more orders, contracts must be executed and closed. The information should not contain information about penalties, fines, violations, etc .;
• The supplier also has the right to provide papers in which information is drawn up on fulfilled obligations according to 3 contracts within three years. Supplier details should also be missing information about any fines or violations;
• The supplier can provide the customer with information on 4 or more completed transactions executed within two years. 75% of these contracts should not have any information about fines, penalties, violations or poor performance of obligations.

The third paragraph says that the main requirement of anti-dumping measures is the ratio of the value of one contract, equal to the value offered by the supplier, not less than 20%.

In the Federal Law 44 h. 4 Art. 37 information has been drawn up that if the customer is holding a tender, then the information described in paragraph three must be attached along with the application for participation in the tender. If the information attached to the application is not officially confirmed, then the checking commission has the right to reject the supplier's request. However, the commission is obliged to explain to the bidder the reasons for rejection of the application and describe them in the verification protocol. After signing the protocol, the commission is obliged to notify the supplier about the rejection of the application within one working day. This clause also confirms the information formalized in clause 1. If the supplier did not provide information about his own good faith, then he is obliged to pay a monetary guarantee 1.5 times more than the volume of contract enforcement to participate in the tender.

Fifth point. This paragraph says that if the customer did not arrange a tender, but an auction, the information described in paragraph three is provided by the supplier to the customer at the time of transfer of the signed contract. If the contractor did not provide the buyer with information about his own good faith when transferring the signed contract, or if the verification commission determined that the information provided by the winner of the auction is unreliable, then the supplier will be deemed to have evaded signing the contract and fulfilling obligations. All information will be entered by the commission in the protocol and added to the corresponding register.

Sixth point. This clause describes that the information or payment included in clauses 1 and 2 must be provided by the contractor prior to the conclusion of the contract. As in the fifth paragraph, failure to comply with this condition of the law is considered to be evasion from concluding a contract and fulfilling one's own obligations. According to the described article 37, information about the supplier is recorded by the commission in the protocol and sent to the register, all participants in the tender or auction are notified.

In the seventh paragraph 37 of article information for orders that require scientific, research, design, scientific and technical work and consulting services has been prepared separately. Thanks to anti-dumping measures, the customer has the right and the opportunity to issue methods for evaluating the order in a tender or auction.

The customer is only entitled to this if:

• The price in the contract is 25% lower than that of the NMCK;
• The price in the agreement is more than 25% lower than that of the NMCK.

In the eighth paragraph information was issued that anti-dumping measures will be applied to contracts where the proposal for the value was higher than 25% lower than the NMC of the contract. In such cases, the decision was to assign a price offer in the amount of 10% of the sums of the values ​​of other evaluation criteria drawn up in the contract.

Part 9 of Art. 37 Law 44 information on the application of anti-dumping measures in contracts for the supply of goods has been drawn up. If, in the case of an order for any product, the price for execution is offered by more than 25% lower than the NCMK, then the participant who offered the price is obliged to provide its confirmation.

The supplier provides the following list of securities:

• Warranty coupons with information about the manufacturer of the goods, as well as a description of the cost and volume;
• Settlement plan and other documents with proof that the supplier fulfills the obligations on time and at the proposed price;
• Documents proving that the participant owns the goods.

Tenth point. In the tenth paragraph, cases are formalized when, when antidumping measures are introduced, a participant is obliged to provide confirmation of the price offered by him to fulfill the obligations of the contract:

• Confirmation is provided by the procurement participant when the price offered by him is 25% or more lower than the NMCK when applying for participation in the tender. The information is checked by the commission, the application is rejected by it and all information about the supplier is entered into the protocol, and then into the register;
• The confirmation is provided by the procurement participant who sent the signed contract to the customer in the event of an auction. If the contractor has not sent the signed agreement, he will be considered a violator who has evaded the fulfillment of obligations, and anti-dumping measures will be applied to him.

In paragraph 11 of the described article, it is written that anti-dumping measures and liability are applied to the participant in full, without indulgence, if he was found by the commission to have evaded the conclusion of the contract.

According to the latest revision of the 37th article, item number 12 ... It says that anti-dumping measures do not apply to participants purchasing vital drugs for the population.

Download the current version of the public procurement law

Article 37 of Federal Law No. 44 was adopted to regulate and control the prices of contracts. This article regulates the processes and measures due to which it is impossible to artificially understate or overstate the value of contracts during auctions or tenders. For a more detailed study of the possibilities of procurement, it is recommended to read the described law.

You can download the text of the Federal Law of 05.04.2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs"