Collusion of bidders criminal liability. Methods for identifying cartels in electronic auctions

As noted by the Federal Antimonopoly Service (www.anticartel.ru), the most serious violation of antimonopoly law is anticompetitive agreements - most often they find their expression in the form of cartel agreements. The word "cartel" (from Italian carta - document) refers to a secret agreement between entrepreneurs competing within the same commodity market, aimed at obtaining excess profits and, as a result, infringing on the interests of consumers.

One of the most common forms of cartel agreement is price fixing in bidding. Currently, the bulk of bidding takes place within the scope of Federal Law No. 44-FZ of April 5, 2013 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” and Federal Law of July 18, 2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities".

Price collusion during bidding is expressed in the conclusion by bidders (potential competitors) of an agreement on the conditions for obtaining a contract before the start of bidding. There are several opportunities to win bids fraudulently, and all of them are known to the Federal Antimonopoly Service and there is an unambiguous established administrative and judicial practice for them, for example:

1) bids with the most favorable price offers are submitted by the participants of the collusion in turn,

2) bidders put forward unacceptable conditions or prices in advance (thus, the winner turns out to have no alternative),

3) bidders withdraw their previously submitted bids for no apparent reason,

4) in some cases, such actions punishable by law as blackmail and the use of violence against potential competitors are possible.

In exchange for their “losing”, “losing companies” receive another contract, a subcontract from the winner, monetary or other reward.

Collusions and/or concerted actions during electronic auctions stand apart among the violations. The FAS Russia is fighting against anti-competitive agreements in the framework of electronic auctions, which have various manifestations, but the most common are two schemes:

1) the minimum price reduction on the part of one participant and the "silence" of others;

2) concerted action to drastically reduce the minimum price of a government contract, with no intention of subsequently concluding a government contract (the so-called “ramming” scheme).

Anti-competitive agreements are detected both by the territorial departments of the FAS RF, the CA of the FAS RF, and by other regulatory/law enforcement agencies (the Prosecutor's Office of the Russian Federation, the Federal Security Service of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, etc.), for example:

• The Altai Territory Department of the Federal Antimonopoly Service attracted two construction companies from the city of Barnaul for collusion at the auction. Case on grounds of violation of Art. 11 of the Law “On Protection of Competition” (a ban on agreements restricting competition between business entities) was initiated based on an analysis of materials received from the Investigation Department of the Russian Ministry of Internal Affairs for the city of Barnaul. As part of the auction with a declared value of more than 900 million rubles, as a result of an oral agreement reached, the auction participants applied an anti-competitive behavior strategy, which consisted in the fact that one of the participants refused to compete and did not enter the auction, thereby allowing the second participant to obtain the right to conclude a contract with a price that is only 0.5% lower than that offered at the auction;
• The Moscow OFAS Russia recognized four participants in the auction as violating paragraph 2 of part 1 of Art. 11 of the Competition Law. The total amount of the initial (maximum) prices of all contracts amounted to more than 16 million rubles. During the auctions, the participating organizations agreed, which led to the maintenance of prices at the auction and allowed LLC "P." win bidding in 3 auctions with a price reduction in two of them by 1.5% and in one by 3%. LLC "G." won bidding in 2 auctions with a price reduction of 3% and 3.5%, LLC Firma "A." won 2 auctions with a price reduction of 1.5% and 2% of the initial (maximum) contract price. The specialists of the Office found that commercial organizations, competing with each other when participating in the auction, acted in each other's interests - they exchanged information, and when submitting price offers, they used a single infrastructure;
• 04/21/2014 18 The Arbitration Court of Appeal supported the position of the Arbitration Court of the Orenburg Region and recognized the decision of the Orenburg OFAS as lawful. The antimonopoly body found that there were active, but not justified by the real intention to conclude a contract (the second parts of the bids obviously did not correspond to the auction documentation) actions of two participants in the agreement, expressed in the submission and maintenance of dumping price proposals to reduce the initial (maximum) price of the contract by 24, 87% and 25.37% respectively. In this connection, it became possible to conclude a contract with a third party to the agreement while reducing its price by 3.5% of the initial contract price. These actions were the result of an oral agreement implemented by these organizations, aimed at coordinating their actions (group behavior) when participating in the auction. The actions of the participants in the agreement to submit dumping price offers and artificially reduce the initial (maximum) price of the contract without the intention to conclude a contract were aimed at creating the appearance of competition and misleading the rest of the auction participants. The result of this behavior was the conclusion by the participant of this conspiracy of a contract with a price different from the initial (maximum) by only 3.5%.
• On July 30, 2013, the Rostov OFAS Russia uncovered a conspiracy to participate in an auction for the maintenance of regional and intermunicipal roads in the Azov and Kagalnitsky districts. The commission of the Rostov OFAS Russia established that the auction participants entered into agreements to maintain prices at the auction. As a result, despite the fact that four companies were allowed to participate, the price offer was received from only one participant with a decrease in the original contract price by only 0.5%;
• On March 17, 2014, the Moscow OFAS Russia fined three companies for cartel conspiracy at a snow removal auction. The total amount of fines imposed was 79.4 million rubles, with the initial (maximum) price of the contract over 105 million rubles. The Department's specialists found that commercial organizations did not compete with each other when participating in tenders, but acted in each other's interests - they exchanged information, and when submitting price offers they used a single IT infrastructure.
• The Moscow OFAS made a decision, according to which the IP and the persons included in the same group with it: LLC "S." and LLC "B." found to have violated paragraph 2 of part 1 of Art. 11 of the Law on Protection of Competition by concluding and participating in an agreement that led to the maintenance of prices at auctions in open auctions in electronic form.

A group of persons in the course of participating in open auctions in electronic form on the trading floor of Sberbank-AST CJSC in March 2011 did the following: two of the parties to the agreement, within a short period of time, alternately reduced the price of the lot by a significant amount, until they were convinced that others the auction participants, misled by such a strategy of behavior, did not refuse to compete, after which, in the last seconds of the auction, the third party to the agreement offered a price slightly lower than the price offered by bona fide auction participants, or the initial (maximum) price of the contract and became the winner of the auction.

The existence of an agreement between the said persons is confirmed by the following circumstances. The individual entrepreneur is the general director of OOO S. and B. LLC, as well as the sole founder of the latter. Actual and legal address of OOO S., OOO B. and IP are the same and the latter carries out its business activities in the premises owned by the General Director of LLC "S." and OOO B. These persons, when participating in ongoing auctions, entered the website of the electronic platform from one IP address.

Thus, participation in the auction is, therefore, for any actual actions committed during the auction, liability is provided. The behavior of the bidder must be reasonable, due solely to objective external circumstances and aimed solely at achieving a transparent economic result. The exceptional importance of compliance with the norms and principles of antimonopoly legislation is due to the presence of liability for the establishment of an anticompetitive agreement, provided for by Article 14.32 of the Code of Administrative Offenses of the Russian Federation, in the form of an administrative fine in the amount of 10% to 50% of the value of the auction.

Moreover, in some cases, participants in anti-competitive agreements may be prosecuted for committing a crime under Art. 178 of the Criminal Code of the Russian Federation.

Attention! The information provided in the article is current at the time of its publication.

We present to yourmania policy review“The use of circumstantial evidence in bid-rigging cases».

Anti-competitive agreements to increase, decrease or maintain prices at auction, prohibited by paragraph 2 of part 1 of Article 11 of Federal Law No. 135-FZ of July 26, 2006« About protection of competition» (hereinafter - the Law on Protection of Competition), are the most common type of cartels. More than half of all cartel cases are initiated by bid rigging .

However, in practice there is no single standard for proving such anti-competitive agreements. In this regard, the most relevant issue is the use of circumstantial evidence in case of significant differences in the approaches of the antimonopoly authority and the courts.

1. Antimonopoly approach

When considering cases of bid rigging, the antimonopoly authorities apply the position developed by the FAS Russia that it is necessary to take not only direct, but also« necessary body of circumstantial evidence» . This means that the conclusion about the presence of a prohibited agreement in the actions of the subjects can be made through the result of the alleged agreement, without reference to any direct evidence of the guilt of the persons.

This approach is actively implemented in administrative practice. Thus, from the analysis of the decisions of the antimonopoly authorities, the following facts and circumstances can be distinguished, on which the accusations of a bidding cartel are based:

• no bids from auction participants on the price of the contract until the auction step has decreased to the minimum ;
• finding bidders at the same address ;
• registration of digital signature key certificates of the accused companies for the same individual ;
• submission of an application from one IP address and/or accounts on which application files were created and modified ;
• conclusion of a supply / subcontracting agreement between the winner and one of the bidders ;
• resale of the subject of the auction between the participants who applied for the auction, and the refusal of the seller to participate in them ;
• meeting of officials of competing companies on the eve of the auction ;
• non-reduction of the offer price to the level indicated in the testimony of an official .

2. Approach of ships

Judicial practice is not as homogeneous as administrative practice. To date, courts have not been unanimous as to whether bid-rigging cases can be decided solely on the basis of circumstantial evidence. Some courts support the FAS Russia and accept all evidence from the antimonopoly authorities. Other courts, on the contrary, refuse to confirm the above position of the FAS Russia.

Thus, in the Decree of the Federal Antimonopoly Service of the Urals District dated August 2, 2011 No. F09-4563/11 in case No. A76-14962/2010, the court indicated that the mere fact of lack of activity among the auction participants cannot indicate their collusion.

In the Decree of the Federal Antimonopoly Service of the Urals District dated March 15, 2013 No. F09-315/13 in case No. A60-23089/2012, the court indicated that the antimonopoly authority did not prove the mutual awareness of the auction participants about each other's actions, their interest in the result of such actions, as well as the unrelatedness of these actions with objective circumstances that equally affect all economic entities. The court found justified the plaintiff's argument about the non-reduction of the offer price due to unprofitability.

In the Decree of the Federal Antimonopoly Service of the Central District dated May 30, 2013 in case No. А64-4201/2012, the court indicated that the behavior of bidders, expressed in the absence of price offers under the contract, is not in itself unconditional evidence of an agreement between business entities. These arguments were confirmed in the Ruling of the Supreme Arbitration Court of the Russian Federation on the refusal to transfer the case to the Presidium dated September 16, 2013 No. VAS-10923/13.

By ruling of the Supreme Arbitration Court of the Russian Federation dated March 31, 2014 No. VAC-3861/14 in case No. A40-92025/2012, the transfer of the case to the Presidium of the Supreme Arbitration Court of the Russian Federation was denied, since the lower courts made the correct conclusion that the existence of an anti-competitive agreement between the companies was not proven.

At the same time, some courts accept circumstantial evidence as sufficient, substantiating the decision with the actual circumstances of the case.

Thus, in the Resolution of the Federal Antimonopoly Service of the East Siberian District dated March 25, 2014 in case No. A74-2372 / 2013, the legality of the decision of the antimonopoly authority was confirmed due to the fact that the applicants, before holding auctions and tenders, had previously participated in other tenders for the right to conclude similar state contracts and were aware of each other's actions.

In the Decree of the Federal Antimonopoly Service of the Moscow District dated April 22, 2013 in case No. A40-94475 / 12-149-866, the court considered that the actions of business entities led to the conclusion of a state contract at the highest possible price, and recognized as proven the fact of reaching an oral agreement, although in the case there was no direct evidence of the subjects' guilt.

In the Decree of the Federal Antimonopoly Service of the North Caucasus District dated April 3, 2013 in case No. A53-21732/2012, the court concluded that the behavior of economic entities that incurred the costs of participating in the auction, but did not take real part in it, was illogical. As a result, the court found that the actions of the participants were aimed at maintaining the price at the auction, limited competition in setting a competitive price and created a situation that entailed insufficient savings in budgetary funds.

Similar decisions were made by the Decree of the FAS of the Far Eastern District of November 5, 2013 No. Ф03-5209/2013 in case No. А59-5489/2012, by the Decree of the Federal Antimonopoly Service of the West Siberian District of November 6, 2013 in case No. А70-139/2013.

3. Conclusions and recommendations

A general analysis of law enforcement practice shows that it is becoming more and more difficult to challenge the decisions of the antimonopoly authorities on bid rigging: the courts quite often support the position of the FAS Russia and accept circumstantial evidence. This is probably due to the nature of the offense itself, because bid rigging directly leads to an increase in the cost of government contracts and, as a result, to inefficient use of budget funds.

Hello Anton!

(same surnames)
Anton

The presence of the same surnames for the representative of the Customer and the participant may be a banal coincidence, so it is too early to draw any conclusions. If you had, for example, a marriage certificate of these persons or a certificate from the registry office on marriage between them, or, for example, birth certificates of these persons or a certificate from the registry office on the relationship of these persons.

If, nevertheless, these persons are related to what there is accurate data, you need to ask the FAS to check this information and here we will already talk about a conflict of interest.

the representative of our organization was verbally refused to be present at the opening, referring to the fact that according to 223-FZ, according to their Regulations on Procurement, public opening of applications is not provided.
Anton

This is true, the commission considers applications independently in accordance with

section 4.5. Consideration and evaluation of applications

You can refer in the complaint to the following article.

According to Article 3 223-FZ 1. When purchasing goods, works, services, customers are guided by the following principles:
1) information openness of procurement;
2) equality, fairness, absence of discrimination and unreasonable restrictions on competition in relation to procurement participants;
3) targeted and cost-effective spending of funds for the purchase of goods, works, services (taking into account, if necessary, the cost of the life cycle of purchased products) and the implementation of measures aimed at reducing customer costs;
4) the absence of restrictions on admission to participation in the procurement by establishing non-measurable requirements for procurement participants.
6. It is not allowed to present requirements to the procurement participants, to the purchased goods, works, services, as well as to the conditions for the execution of the contract, and to evaluate and compare applications for participation in the procurement according to the criteria and in the manner that are not specified in the procurement documentation. Requirements for procurement participants, for purchased goods, works, services, as well as for the conditions of execution of the contract, criteria and procedure for evaluating and comparing applications for participation in the procurement established by the customer, apply equally to all procurement participants, to the goods they offer , works, services, to the terms of the performance of the contract.

Any expert will confirm the compliance of the film with the TK
Anton

And how could it happen that the film appeared before the auction?

1) How to prove it?
Anton

In principle, you do not have many reasons to cancel the procurement procedure. Again, the fact of kinship is just an assumption, while there are no supporting documents, executable TK is also not in your favor.

The fact of the appearance of the film before the auction is difficult to confirm; I believe that an appropriate examination is needed.

How did you find out about the availability of the film before the auction?

2) Do not find fault with the text of the TK, it is doable. Which articles of the law should be referred to in this case when filing a complaint?
Anton

According to Article 3 223-FZ10. The procurement participant has the right to appeal to the antimonopoly authority in the manner established by the antimonopoly authority, the actions (inaction) of the customer in the procurement of goods, works, services in the following cases:
1) non-posting in the unified information system of the provision on procurement, changes made to the specified provision, information on procurement subject to placement in the unified information system in accordance with this Federal Law, or violation of the terms of such placement;
2) presenting a requirement to the procurement participants to submit documents that are not provided for by the procurement documentation;
3) purchases of goods, works, services by customers in the absence of a procurement provision approved and posted in the unified information system and without applying the provisions of the Federal Law of April 5, 2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services for provision of state and municipal needs”;
4) non-placement or placement in the unified information system of false information on the annual volume of purchases that customers are required to make from small and medium-sized businesses.

However, I believe that in your case an appeal under the Federal Law on Protection of Competition is more suitable.

According to Article 17 of 135-FZ 1. When conducting an auction, a request for quotations of prices for goods (hereinafter - a request for quotations), a request for proposals, actions that lead or may lead to the prevention, restriction or elimination of competition, including:

1) coordination by the organizers of the auction, request for quotations, request for proposals or customers of the activities of their participants;
2) creation of a bidder, a request for quotations, a request for proposals or several bidders, a request for quotations, a request for proposals on preferential conditions for participation in bidding, a request for quotations, a request for proposals, including through access to information, unless otherwise established by federal law;
3) violation of the procedure for determining the winner or winners of the auction, request for quotations, request for proposals;
4) participation of the organizers of the auction, request for quotations, request for proposals or customers and (or) employees of the organizers or employees of customers in the auction, request for quotations, request for proposals.
2. Along with the prohibitions established by Part 1 of this Article during the conduct of an auction, a request for quotations, a request for proposals, if the organizers of the auction, the request for quotations, the request for proposals or the customers are federal executive authorities, executive authorities of the constituent entities of the Russian Federation, local governments, state non-budgetary funds, as well as when conducting an auction, a request for quotations, a request for proposals in the case of procurement of goods, works, services to meet state and municipal needs, it is prohibited to restrict access to participation in an auction, request for quotations, request for proposals that is not provided for by federal laws or other regulatory legal acts.
4. Violation of the rules established by this article is the basis for the recognition by the court of the relevant bidding, request for quotations, request for proposals and transactions concluded as a result of such bidding, request for quotations, request for proposals of transactions as invalid, including at the suit of the antimonopoly authority.
5. The provisions of part 1 of this article shall apply, among other things, to all purchases of goods, works, services carried out in accordance with the Federal Law of July 18, 2011 N 223-FZ "On the Procurement of Goods, Works, Services by Certain Types of Legal Entities".

In this case, you have a chance to appeal only on the basis of coordination between the participant and the customer. However, again, this can be proved either by witness testimony or by audio and video recordings. I don't see any other evidence.

I think that there is little chance of an appeal, only on the basis of the relationship of these persons, and that basis is rather shaky.

In the complaint, write that you are asking the FAS to invalidate and cancel the procedure, and also to oblige the customer to conduct the procurement procedure again.

Signs of a cartel:
1) the use of one-day firms to create the appearance of competition in the auction, which cease to exist after the goal of creation is achieved - winning the auction of the planned procurement participant;
2) bribing competitors with the aim of their refusal to win the auction, i.e. passive participation without bidding;
3) non-appearance of all procurement participants admitted to bidding, with the exception of one participant, which leads to the conclusion of a state contract with a single participant at the initial (maximum) contract price in accordance with the Law on the COP;
4) the absence of price proposals from participants in the order placement until the bidding step is reduced to 0.5% and, consequently, the minimum reduction in the initial (maximum) contract price.
Responsibility for cartel agreements at auctions is provided for both by the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation) and the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation).
In accordance with Article 14.32 of the Code of Administrative Offenses of the Russian Federation, a cartel agreement at an auction provides for the imposition of a “negotiable” fine calculated from the initial (maximum) price of the subject of auction. The specific amount of the fine is calculated according to the approved methodology of the FAS Russia. Administrative responsibility will be borne by all participants in the cartel, and not just the winner of the auction. And if specific officials who have concluded this agreement are identified, they may additionally be subject to disqualification for up to three years.
If, as a result of a cartel collusion at auction, the state, citizens or organizations suffer damage specified in Article 178 of the Criminal Code of the Russian Federation, then criminal liability is provided for such violation. Only natural persons, namely heads or representatives of economic entities who entered into a cartel agreement, can be held criminally liable.
However, the issue of bringing foreign persons to administrative responsibility still remains unresolved. The extension of Article 14.32 of the Code of Administrative Offenses of the Russian Federation to foreign legal entities will help to solve this problem, if the agreement concluded between them had an impact on competition outside of Russia.
Thus, a cartel collusion at the auction can become a criminal offense when causing large and especially large damage, as indicated in Article 178 of the Criminal Code of the Russian Federation. Consequently, the public danger from such crimes is extremely high. The damage caused to the country's economy consists not only in the non-receipt and non-saving of budgetary funds, but also in violation of the established procedure for distributing funds in the economy, which in turn affects the manageability of economic processes in the country.
As a rule, a representative of state authorities or local self-government acts as a customer, members of a commission, an authorized organization, a specialized organization. In this case, the conspiracy will not be considered a cartel, since a cartel is a conspiracy of economic entities.
Another collusion in the auction is the collusion between the participants and the organizer.
The purpose of this type of collusion is the victory of a particular company at the auction.
This type of collusion is also prohibited by antitrust laws. Article 16 of the Law on Protection of Competition expressly prohibits such agreements, provided that they lead or may lead to the prevention, restriction or elimination of competition. The law contains an open list of consequences that these actions can lead to. Therefore, in order to establish an agreement between the authorities and an economic entity, it is sufficient to prove the fact of the agreement itself and its negative impact on competition. Moreover, negative consequences may not occur, it is enough to prove that this agreement could lead to such consequences.

Signs of collusion with procurement organizers:
1) the establishment in the tender documentation of such requirements for procurement participants, which only a certain supplier (executor, contractor) obviously meets:
● setting requirements for procurement participants (on the availability of material and financial resources, certificates of conformity) in violation of the requirements of the Law on CUs;
● establishment of requirements for the application for participation in the auction in violation of the requirements of the Law on the Constitutional Court (submission of calculation of the contract price);
● Establishment in the tender documentation of such requirements for goods (works, services) that are the subject of a state contract that only one supplier (executor, contractor) can fulfill (for example, setting an unrealistic deadline for the execution of a contract);
● inclusion of heterogeneous goods (works, services) in one subject of auction (lot) in order to limit competition;
2) establishment of a subjective procedure for evaluating applications for participation in the competition;
3) non-compliance with the deadlines established by the Law on the Constitutional Court, provided for the publication of information on the auction on the official website;
4) non-compliance with the requirement for admission of procurement participants to participate in the auction (cases have been recorded when customers interested in the victory of one organization instruct security services not to let other organizations into the building to participate in the auction);
5) premature opening of envelopes with applications for participation in the competition;
6) conclusion of a contract before the expiration of 10 days from the date of publication on the official website of the final protocol;
7) conducting a tendering procedure (imitation of tenders) under an already concluded (executed) contract;
8) conclusion of a contract with a single supplier (executor, contractor), in cases not provided for by the Law on the CC of orders (for example, it is common to conclude contracts with a single supplier (executor, contractor) on the basis of emergency, in the absence of emergency situations);
9) holding “home auctions”, when several companies of the municipality or region gather, and the rest are strongly advised not to participate;
10) creation of one-day firms to participate in the auction;
11) the presence of affiliation relations between representatives of the customer and the procurement participant.
In the event of a collusion between procurement participants and the authorities that organized or conducted them, both officials of the authorities and procurement participants are responsible for such collusion.
The Code of Administrative Offenses of the Russian Federation, in accordance with Part 3 of Article 14.32, provides for this type of conspiracy to impose a fine in the amount of twenty to fifty thousand rubles or disqualification for up to 3 years.
But if it is not possible to establish the fact of an agreement between these persons, then the actions of, for example, the organizers of the auction can be qualified as a violation of Article 17 of the Law on Protection of Competition (antimonopoly requirements for auctions) and entail liability under Article 14.9 of the Code of Administrative Offenses.
There is no criminal liability for this type of conspiracy. However, the actions of government officials can be qualified as abuse of power in the event of a number of consequences. If as a result of collusion there was a “kickback” scheme or theft of budgetary funds, then such an act can be qualified as taking a bribe or fraud.
A significant mechanism for combating collusion has been the introduction of an electronic auction procedure (a list of goods, works, services has been established, in the event of which the customer is obliged to conduct an auction in electronic form). One of the main requirements for the first parts of applications submitted for participation in an electronic auction is their anonymity. Consequently, potential procurement participants cannot recognize each other, which means they will not be able to collude.
To date, more than half of all government orders are placed through electronic auctions (Fig. 2) .
However, cases of collusion can also be observed in electronic auctions. A common collusive scheme in e-auctions is that of one-day firms that sharply and immediately reduce the price to a level at which bona fide bidders cannot fulfill the contract and do not submit bids. Further, after the auction, errors are found in the documents of one-day firms, and on this basis the customer rejects the bids of these companies as inappropriate. The contract is signed with a third company, which, in the last minutes of the auction, declares a price slightly lower than bona fide participants who refused to continue bidding.

Kiryanova Viktoriya Sergeevna / Kiryanova Viktoriya Sergeevna - Department of Finance and Credit,
School of Economics and Management, student;
Vakulenko Kseniya Eduardovna / Vakulenko Kseniya Eduardovna - Department of Finance and Credit,
School of Economics and Management, student
Far Eastern Federal University, Vladivostok

Annotation: The article discusses collusive schemes at the auction, provides specific examples of these collusions, and proposes a solution to this problem. Articles of regulatory legal acts that control competition and agreements between market participants are given.

Abstract: the article considers with the scheme of collusion in the auction, provides specific examples of these collusions, and offers a solution to this problem. This article provides an article of legal acts, regulatory competition and agreements between market participants.

Keywords: auction, collusion of auctioneers, agreements between business entities, concerted actions, competition, electronic auction.

keywords: auction, conspiracy of auctioneers, agreements of economic entities, concerted action competition, electronic auction.

During the auction, participants compete with each other for the right to purchase a certain product, type of service, or work. But in recent years, cases of collusion have become more frequent, which take various forms. As a result of such agreements, the main goal of holding auctions is violated - saving money for budgetary institutions, making profits for private auctioneers.

Collusion at an auction is a preliminary, prior to the auction, a secret agreement of several participants to act in a certain way in their own interests and to the detriment of the interests of other persons and economic entities.

Collusion at auctions restricts competition and violates human rights, which is why they are prohibited by law.

According to Article 34 of the Constitution of the Russian Federation, everyone has the right to engage in entrepreneurial and other economic activities not prohibited by law, but it should not be aimed at monopolization and unfair competition.

In accordance with Article 11 of the Federal Law “On Protection of Competition” (hereinafter referred to as the Federal Law “On Protection of Competition”), concerted actions of economic entities and agreements between them in the commodity market are prohibited if they lead or may lead to an increase, decrease or maintenance of prices at auction .

According to Article 14.32 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation), the conclusion by an economic entity of an agreement, participation in it or the implementation of concerted actions, as well as the coordination of economic activities, are considered an administrative offense and entail administrative responsibility.

In accordance with Article 178 of the Criminal Code of the Russian Federation, the prevention, restriction or elimination of competition by concluding agreements between economic entities-competitors, if they caused major damage to citizens, organizations or the state, or resulted in the extraction of income on a large scale, are criminal offenses.

When bidding, actions that lead or may lead to the prevention, restriction or elimination of competition are prohibited, including:

1. coordination by the organizers of the auction or customers of the activities of its participants;

2. creation of preferential conditions for a bidder or several bidders;

3. violation of the procedure for determining the winner of the auction;

4.participation of the organizers of the auction or customers in the auction.

Among collusion at the auction, agreements between auctioneers are most common. Although there are other collusion schemes. Let's consider some of them.

Scheme No. 1. Collusion of participants.

1. Since the list of auctioneers is placed in an open source, they can agree in advance among themselves by dividing the lots. And then the scheme of behavior will be as follows: the auctioneer announces the lot and the initial price. Only one card is raised. The next lot is another card and so on.

This type of collusion was uncovered by the Federal Antimonopoly Service (hereinafter referred to as the FAS) of the Rostov Region in 2009. During the auction for the right to conclude a municipal contract for the production of a project for the gasification of social facilities in the Semikarakorsky district, Rostoblzhilproekt LLC and Monolit LLC agreed on their actions and did not reduce the price of the contract for individual lots in favor of each other. By their actions, they violated Article 11 of the Federal Law “On Protection of Competition” and were forced to pay a fine: Rostoblzhilproekt LLC - in the amount of 147 thousand rubles, and Monolith LLC - more than a million rubles.

2. Auctioneers gather in advance and hold their own auction, during which they determine their prices for lots and offer each other “compensation”. Who will offer the largest amount of "compensation", he won. During the auction, they raise the card once and lower the price as much as possible.

As an example of this type of collusion, concerted actions between the participants during the holding of an auction for the maintenance of sections of the Syzran-Saratov-Volgograd federal road in 2013 can serve as an example of this type of collusion. Volgogradavtodor and DSP PK-Stroy entered into an agreement with Avtotekhpark to transfer 10 million rubles to it for its refusal to participate in the fight, and signed subcontract agreements with Volgogradavtomost to perform work on the won lots. Auctions for lots No. 11 and No. 12 were declared invalid as a result of the refusal to participate in them by DSP PK-Stroy and OGUP Volgogradavtodor, respectively. And state contracts were concluded at initial prices with one participant: with OGUP Volgogradavtodor for lot No. 11, for lot No. 12 with DSP PK-Stroy LLC. With such an agreement, the auction participants violated Article 11 of the Federal Law “On Protection of Competition”, creating conditions under which budgetary funds were spent inefficiently. The guilty face fines ranging from 10 to 63 million rubles.

3. Auctioneers do not come to the auction, except for the highest bidder.

In 2009, the Sverdlovsk OFAS Russia established that 5 participants were allowed to participate in the auction for the repair of metal roofs of educational buildings, including Construction Enterprise SMU-30 LLC, MonolitStroy LLC and Agroremstroy LLC. However, a representative of only Agroremstroy LLC appeared at the auction procedure. As a result, the auction did not take place, and the state contract was concluded with the only participant in the auction - Agroremstroy LLC. In this case, article 14.32 of the Code of Administrative Offenses of the Russian Federation was violated, according to which a fine from 1 hundredth to 15 hundredths of the amount of the offender's proceeds from the sale of goods on the market is provided for the implementation of concerted actions that restrict competition.

4. Auctioneers do not bid until the auctioneer lowers the starting price of the item, and then they begin to submit bids that reduce the price of the lot by the minimum auction step (0.5–1%).

In 2010, the Federal Antimonopoly Service of the Russian Federation disclosed a conspiracy between Trading House GIGIEYA LLC, Dmitrovskie Vegetables LLC, Frutovit LLC, TK Ditrade LLC and Atlantis LLC during an open auction for the right to conclude government contracts for the supply of purified potatoes and vegetables harvested in 2009 to feed pupils of educational institutions in Moscow. Participants were found to be in a contractual relationship. This is confirmed by the minimum percentage of the initial price reduction, which is not typical for public procurement. As a result, the decrease was 0.5-1% instead of the prescribed 10-15%. For violation of Article 11 of the Federal Law "On Protection of Competition", auction participants were brought to administrative responsibility.

5. The auctioneer submits an application for participation in the auction, which contains false information about it, or other information provided to create the appearance of a formal participation of an economic entity in the auction.

In 2013, the prosecutor's office of the Budzyakovsky district of the Republic of Belarus conducted an inspection on the fact of fraud on an especially large scale. The director of the Budzyak firm, participating in the auction for the privatization of securities, ensured the formal participation of another person in the sale, to whom funds were offered to reimburse costs under a contract of employment.

Scheme No. 2. Collusion of the participant and the customer.

The customer draws up auction documentation for a specific supplier or manufacturer, specifying strict requirements that apply only to a specific trade mark of a particular product, which accordingly limits the number of participants in placing an order.

Scheme 3. The customer and the participant are one person.

If an official of any institution knows that budgetary funds have been allocated for the purchase of goods, then he creates a company participating in the auction and winning it due to the rejection of applications from other participants.

The solution to the problem of auction collusion is to conduct auctions in electronic form. Since participation in such auctions is anonymous, the likelihood of collusion is reduced, and “paper” procedures are simplified. In addition, the electronic form attracts more participants.

An electronic auction is an auction in which bids are submitted via the Internet. Suppliers submit bids if they agree to the terms of delivery and compete only on price. The website reflects all the proposals of the participants, and each of them can see them and submit their own. If the offer has been on the site for an hour, and no one has submitted another offer after it, the auction is declared over. If identical bids are received, the winner is the one whose bid was first. By law, you must report the end of the auction immediately.

Electronic auctions have a number of advantages over other types of transactions. They are open and objective. This results in lower purchase prices. An important feature is the unlimited geographical coverage of suppliers, combined with a reduction in the time of the transaction. This method of holding auctions has proven itself well in Europe. Foreign experts believe that the electronic auction is an effective anti-corruption mechanism against the possible collusion of its participants.

Literature

1. Code of the Russian Federation on Administrative Offenses (CAO RF) N 195-FZ of December 30, 2001 / (Accessed on June 21, 2014).
2. Constitution of the Russian Federation dated 12.12.1993 /
3. Criminal Code of the Russian Federation (Criminal Code of the Russian Federation) N 63-FZ dated 06/13/1996 / (Date of access: 06/21/2014).
4. Federal Law "On Protection of Competition" N135-FZ dated July 8, 2006 / (Accessed on June 21, 2014).
5. Peculiarities of proving the collusion of economic entities at the auction / Y. Kulik, A. Grishina / Legal Insight; No. 7 (13), 2012, p. 8-13.
6. Concerted actions of participants in the placement of state orders / E.S. Shabanova / Bulletin of the Omsk University. Series "Law"; No. 3 (24), 2010, p. 138–141
7. Electronic auctions: from a laser pointer to ... / A. Emelyanov / Management of the metropolis; No. 4-5, 2008, p. 87-91.
8. The authorities of local mayor's offices dispose of state property as their own property / (Accessed: 06/21/2014).
9. For collusion at the auction of road builders, the FAS threatens with a fine of half the price of the contract - up to 113 million rubles. / (Date of access: 06/21/2014).
10. Problems of the state order / (Date of access: 06/21/2014).