Participation in the auction by two firms. Possible risks and their causes. Trends.
So what? This begs the question of those who take part in the auction in this way.
At first glance, it is a fairly well-established practice, which is a kind of business custom. Plus, it seems like everyone does it. And nothing like that happens to anyone.
When you say that antimonopoly and related administrative and criminal law risks arise in such situations, some of the entrepreneurs will ask what it is and what does “antimonopoly” have to do with them, while others will say that the devil is not so terrible, how they can paint it. The main thing is revenue and profit. The rest we will decide in working order.
However, seeing over the past couple of years a trend towards an increase in the number of cases, as well as the already formed separate approaches of the antimonopoly authorities-courts to consider cases (even without taking into account the nuances of the work of law enforcement agencies), it is worth paying attention to the problem.
First, a little theory. According to Article 11 of the Law on Protection of Competition, agreements between economic entities-competitors are recognized as a cartel and agreements between economic entities-competitors are prohibited if such agreements lead or may lead to:
1) establishment or maintenance of prices (tariffs), discounts, allowances (surcharges) and (or) extra charges;
2) increase, decrease or maintenance of prices at the auction;
3) dividing the commodity market according to the territorial principle, the volume of sale or purchase of goods, the range of goods sold or the composition of sellers or buyers (customers);
4) reduction or termination of production of goods;
5) refusal to conclude contracts with certain sellers or buyers (customers).
Secondly, these agreements can be oral. As part of the collection of the necessary evidence, the antimonopoly authority may send and receive access to various information, including banking information. For example, about the ip-addresses of workplaces from which there was access when participating in the auction.
Thirdly, now about sanctions. For violation of Article 11 of the Law on Protection of Competition, they love Article 14.32 of the Code of Administrative Offenses of the Russian Federation. If we take at least for a legal entity, then from three hundredths to fifteen hundredths of the amount of the offender's proceeds from the sale of goods (work, services) on the market of which an administrative offense was committed, or the amount of the amount of the offender's expenses for the purchase of goods (work, services) on the market who committed an administrative offense.
If there were several episodes, then they can take the amounts for all contracts and apply the specified rate to them. The penalty can be very noticeable.
Fourthly, the antimonopoly authorities, of course, can show attention themselves, for example, as it sometimes happens on the drug market, but there are also cases of “draining” by counterparties. Intentional or negligent. For some, this is sometimes a completely acceptable tool of competition.
Fifth, now about the signs that affect the presence and level of risks for oneself and/or counterparties/competitors:
a) affiliation of subjects;
b) types of activity of subjects;
c) ip-addresses when working both with an electronic platform (bids, price offers), and with banks, postal services (for example, Yandex) and other counterparties that such addresses can fix;
d) contacts (telephone, e-mail address) in documents;
e) contact persons – lawyers, tender managers, etc.;
f) transactions and operations between the companies themselves.
So if you have questions about the above, write. We'll try to help. Better sooner than later))
February 19, 2020
Vitaly Vetrov, managing partner of Vetrov & Partners law firm.
We will be happy to provide you with legal assistance regarding the minimization of legal risks and available opportunities. We will try to find a solution that is right for you.
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We recommend that you read our blog dedicated to legal and judicial cases (arbitration practice) and read the materials in the "Articles" section.
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