Cartel collusion. Coordination of the terms of reference by the customer and the contractor. 44fz, 223fz.
The Ministry of Digital Development and Communications of the Novosibirsk region was recognized as a participant in a cartel conspiracy, violating paragraph 1 of part 1 of article 17 of the Law on Protection of Competition.
Having familiarized ourselves with the material on Continent Siberia, which refers to a cartel conspiracy between the Ministry of Telecom and Mass Communications and two affiliated companies, Opticom and PSK Opticom, we learned that the antimonopoly service was checking the companies.
Within the framework of which, a tender was studied for the provision of services for the development of information and telecommunications infrastructure in educational institutions of the region, announced by the Ministry of Digital Technologies of the region as part of the Digital Economy national project. The initial amount of the contract was 398 million rubles, but the final amount was 394 million rubles. The draft terms of reference were agreed upon by the customer and the contractor before the start of the auction. Subsequently, this legal entity became the winner of the auction. Also, the contractor himself started work before the announcement of the tender.
Natalya Kamneva, deputy head of the regional OFAS, said that the situation in which the customer, together with an economic entity, prepares the procurement documentation for the bidding, does not meet the principle of ensuring competition established by federal law.
According to the Unified State Register of Legal Entities, the head of PSK Opticom, Vyacheslav Subochev, is also a co-founder of Optikom LLC. In addition to Opticom and PSK Opticom, PJSC Megafon and two other commercial companies took part in the competition.
The Ministry of Digital Development and Communications said they did not agree with the decision and intended to appeal it to the arbitration court.
Bidding is carried out subject to not only 44 fz, but also antitrust laws. Unfortunately, bidders do not assess and manage antimonopoly risks well enough, which can lead not only to antimonopoly, administrative, but also criminal liability. At the same time, it is also worth accepting that the initiation of problems in this area can be carried out both at the initiative of law enforcement agencies (for example, the FSB of the Russian Federation) and competitors.
We recommend that you look at our other materials on the topic of cartels:
1. Cartel agreements: practice in cases with OFAS
2. The practice of applying 44-FZ in 2020
3. Hidden business ownership
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