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«ФОЛЬКСВАГЕН Груп Рус»
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Getting into the blacklist of suppliers
Violators of the treaty in the area of procurement usually get into the register of bad-faith suppliers. It contains information about such suppliers as a list, which includes detailed information about the supplier and the agreement with reported violations of obligations.
- The legislative basis for inclusion in the Register of bad-faith suppliers are:
- Violation of the terms and procedure of concluding the agreement;
- Forced termination of the contract in court;
- Refusal of the customer from the agreement due to grave violations of its terms.
The Legislative Implications of the Inclusion in the Register of bad-faith suppliers
The placement on the Register of bad-faith suppliers brings a range of implications:
- The public nature of the posted information may have a negative impact on the conclusion of further transactions with any counterparties.
- The prohibition of the conclusion of treaties under laws 44-FL and 223-FL within 2 years from the date of publication of the supplier in the Register of bad-faith suppliers.
- Register of bad-faith suppliers contains information about both the organization and its founder. This precludes the possibility of participation in public procurement even when a new legal entity is created by the same person.
How can you protect your rights
It is important to note that during the calendar year the Register of bad-faith suppliers was filled with more than 11,000 records of bad-faith suppliers, implementing partners and contractors. That clearly shows that the issue of inclusion in the Register of bad-faith suppliers goes for all contract holders of state or municipal contracts. So it is required not only to gain maximum benefit by reliance on the contract but also to not lose your reputation in the market. Further, we go into detail about the procedure of inclusion in the Register of bad-faith suppliers.
Based on information supplied by a customer, the supervisory authorities of the Federal Antimonopoly Service decide on inclusion in the Register of bad-faith suppliers.
The most serious cause of being included in the Register of bad-faith suppliers is the termination of the contract by court order because in this case, information is transmitted to the register as soon as the court decision came into force. That is why it is important to participate in a trial of the court of the first instance to be able to protect your rights.
Other grounds include the unilateral refusal of the direct customer from the agreement due to serious violations of the terms, as well as avoidance of the conclusion of the agreement. In this case, the customer independently applies to the Office of the Federal Antimonopoly Service, because for a failure to provide information of any violations to authority, he may receive an administrative fine of up to 100,000 rubles.
The transmission of information due to the unilateral waiver of the execution of the contract
In this case, the customer is able to operate with the following facts:
- a lack of necessary accompanying documents;
- violations during the execution of the contract, the low standard of the result;
- terms violations.
Meanwhile, the circumstances which formed the objective reasons for such consequences and exclude the recording information into the Register of bad-faith suppliers, customers may not announce.
These may include:
- modification of the terms of agreement by the customer in its execution process;
- obstacles encountered in work, caused by the customer;
- Violation of the cross-undertaking obligations.
It is important to scrutinize each paragraph of the agreement to resolve the situation and dispute settlement.
One of the shaky grounds Inclusion in the Register of bad-faith suppliers is the avoidance of conclusion of an agreement. It also includes a violation of the term of its conclusion.
What can you do if on the final day of signing the agreement there is cut off the Internet or your electronic digital signature breaks down? Is it a business risk or a good excuse? Everything will depend on the circumstances of a particular procurement.
That is why it is especially important when participating in procurement if things go wrong to be able to insure yourself with objective evidence of the absence of fault.
Collect written acknowledgement:
- Write requests that are requiring written responses to third parties on whom your business depends;
- Save the correspondence with counterparties.
The particulars of the procedure
The decisions on the integrity of suppliers and the need to include it in the Register of bad-faith suppliers are made at the meeting of the Commission of the Office of the Federal Antimonopoly Service. Both a party of state or municipal agreement and the immediate executor take part at this meeting.
At this time it is possible to hold the meeting online. The presence at the meeting and the timely submission of all exculpatory evidence may a powerful additional reason in favour of the supplier. Meanwhile, the decision of the Office of the Federal Antimonopoly Service may be appealed in court. It is worth noting that at this time a trial practice is being formed that allows collecting damages to the business reputation caused by the Office of the Federal Antimonopoly Service as a result of the illegal placement of information in the Register of bad-faith suppliers.
Because of the risks, we strongly recommend that you hire qualified lawyers who specialized in the area of practice of challenging the acts of the Office of the Federal Antimonopoly Service. Lawyers of the Tsentralny Okrug Law firm have considerable experience in the area of procurement. They analyze all procurement documentation and form your legal position to protect your interests in the commission of the Office of the Federal Antimonopoly Service and, if necessary, in courts. When working with us, you can rely on a well-structured legal position that takes into account all the nuances of the case.
Author is Anna Kononova