The megaproject lobbied by Rostelecom is recognized illegal and unprofitable. A system is dismantled
| Customers: Agency of development of the Novgorod region Veliky Novgorod; Government and social institutions Contractors: Rostelecom, Technoserv Project date: 2015/02
Project's budget: 733 000 000 руб.
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2018: Failure of Rostelecom from requirements for payment of the project
Rostelecom abandoned financial claims in the amount of more than 604 million rubles to the Novgorod region about payment of the project of creation of a system of photovideo fixing of violations of traffic regulations in the region. It follows from the decision of the Arbitration court of the Novgorod region published in March, 2018.
The operator demanded from the region through court to pay it this amount, having said to defendants "Management of highways of the Novgorod region Novgorodavtodor, the regional Ministry of Transport and Road Facilities and the Ministry of Finance. From the specified amount of 348.8 million rubles Rostelecom required as debt on a payment due date for March, 2016 and 255.6 million rubles – for March, 2017.
In February, 2018 the company filed in court a petition for failure from the stated requirements and suit abatement about payment.
 | Rostelecom abandoned claim claims in connection with entry into force of the decision of Arbitration court of the Novgorod region on case No. A44-6292/2017 according to which the agreement on creation of a system of photovideo fixing of violations of traffic regulations is nullified, - explained the solution to TAdviser in Rostelecom. |  |
As of the beginning of April Rostelecom considers different options of effective use of earlier installed equipment of a system of photovideo fixing, added to the companies.
Failure from requests for payment for the project was preceded by loss of court by Rostelecom with OFAS of the Novgorod region where anti-monopolists required to nullify tender and the agreement with the operator on creation of this system.
2017
The court nullified the contract with Rostelecom. A system is dismantled
In October, 2017 the court satisfied the claim of the Novgorod OFAS and made the decision on recognition invalid the agreement and tender according to which Rostelecom created a system. The court agreed with arguments of the Novgorod OFAS and took materials of the inspection which is carried out by prosecutor's office of the Novgorod region into account.
Rostelecom was going to appeal against this solution, but then refused the petition for appeal.
In November cameras of a system of Rostelecom in the Novgorod region ceased to work, communication channels were disconnected. Regional mass media reported dismantling of cameras.
FAS revealed the anti-competitive agreement on the project between Rostelecom and Technoserv
In November the Novgorod OFAS made one more decision according to which not only Rostelecom, but also "Technoserv of AS" which was attracted as subcontractor on the project was recognized violated the antitrust law. [1] Follows from information published on the website of FAS that anti-monopolists revealed the anti-competitive agreement between the companies, and came to a conclusion that the companies together studied the tender documentation.
Later, at the beginning of April, 2018, in the press service of Technoserv told TAdviser what this solution did not become effective, the company does not agree with outputs of the Novgorod OFAS and at present appeals against the solution in court. Rostelecom then reported that this solution is appealed against them by the company in arbitration court which will check the solution regarding compliance to the existing competitive legislation.
The course of the criminal case connected with this project Rostelecom preferred not to comment on TAdviser.
Increase in financial requirements of Rostelecom for payment of the project
In 2017 Rostelecom increased the amount of funds, demanded from the Novgorod region through court as payment for the project, to 604 million rubles.
Rostelecom implemented the project on creation of a system of photovideo fixing in the Novgorod region in 2015-2017 at the expense of own means, and payment was provided from the customer at the expense of penalties for violations of traffic regulations collected as a result of operation of a system.
The cost of all works on the agreement was estimated at the amount about 730 million rubles. However the regional budget could not pay off the company completely. The acting the governor of the Novgorod region Andrey Nikitin, by data in regional media, noted that penalties which were written out based on operation of cameras were approximately three times less than expected. Besides, when the moment of the first payment came, the administration of the region had questions who exactly should pay.
Claims of FAS and prosecutor's office
In July, 2017 the Novgorod OFAS recognized that the Agency of Development of the Novgorod Region (ADNR) violated the law on the competition at biddings on the project of creation in the region of a hardware-software complex of photo and video fixing of violations of traffic regulations. The relevant decision was published in a card file of solutions of the regulator. FAS came to a conclusion that at biddings at the choice of the supplier of this project primary conditions of participation were provided to Rostelecom.
Earlier in 2017 concerning the same project the prosecutor's office of the Novgorod region began to carry out an inspection. FAS considered the materials collected during it at making decision on violation of the law on the competition. The detailed data obtained during public prosecutor's check are provided in the published solution of the regulator. Here enter, including, interrogations of witnesses and the working correspondence of project participants drawing all chain of interaction - from lobbying of the project by Rostelecom in state agencies of the Novgorod region to the tender (to download the solution in the PDF format).
The large project with the price more than 733 million rubles about which there is a speech took place in 2015 (in more detail about the beginning of the project – in the block below). As the contractor on him Rostelecom acted, the volume of the contract with the company was more than 733 million rubles. It was supposed that Rostelecom implements the project at the expense of own means, and payment from the customer will go at the expense of penalties for violations of traffic regulations collected as a result of operation of a system.
The testimonies of witnesses received by prosecutor's office indicate that the decision of the authorities on work on creation of a system and at the expense of Rostelecom was accepted forces to the declaration of an open competition. Rostelecom had an information access about the planned purchase at the earliest stages, participating in meetings with representatives of executive authorities of the Novgorod region, it is specified in materials of FAS.
Promotion of a system, as it appears from materials, began through Department of construction and road economy of the Novgorod region then interaction of Rostelecom with a number of regional state agencies followed. And for the purpose of receiving basic consent on start of the project the meeting at the governor of the Novgorod region with participation of the management of Rostelecom was held.
In the provided reference to an expanded meeting at the governor of the Novgorod region in 2014 in the FAS decision it is specified that according to the results of consideration of investment offers of a number of the companies, the decision on joint project implementation of creation of a hardware-software complex by the companies "Rostelecom and Technoserv was made. Joint experience of implementation of similar projects in the Nizhny Novgorod Region and the Republic of Mordovia became the basis for consolidation of efforts of the companies, it is specified in FAS decision materials.
During public prosecutor's check it became clear that prepared technical specifications and the tender documentation on the tender and edited Rostelecom, including correction of defects of the tender documentation according to the notes specified by the Novgorod Chamber of Commerce and Industry.
Check of prosecutor's office indicates also that Rostelecom prepared also justification of the starting maximum price of the contract. At the same time during the calculating of the price and preparation of justification the company had arrangements with the partner organizations, including Technoserv and Spetsenergotreyd company. Their Rostelecom involved afterwards under separate contracts in execution of works as subcontractors.
| | It is obvious that Rostelecom proved in advance counted price for the investment agreement planned to the conclusion for creation of a hardware-software complex of photo and video fixing of traffic regulations. The company had incommensurably big time frame in comparison with any other potential participant of tender for calculation of economic feasibility of the participation in this tender, - FAS in the solution notes. | |
Having recognized the customer violated the competition act, FAS decided to file the statement of claim to court about recognition invalid an auction and the agreement signed by its results on creation of a hardware-software complex of automatic fixing of violations of traffic regulations in the Novgorod region.
Rostelecom told TAdviser that their company appeals against the decision of OFAS. On July 19 a complaint was filed to Arbitration court of the Novgorod region, the representative of Rostelecom reported.
In addition to trials with FAS, criminal case was also brought.
Speaking about according to what scheme Rostelecom implemented similar projects in other regions, the company noted that the current legislation allows to implement projects of this sort by different methods, including public contracts, investment agreements, concessionary agreements and so forth. The specific procedure of the choice of the contractor for the project is defined directly by the customer and has exclusively public character, added in Rostelecom.
Believe in "Kovalyov, Tugusha and Partners" Bars that in terms of judicial perspectives, Rostelecom has certain chances. The position of Rostelecom in a dispute with OFAS is based that the staff of the company did not give and could not give the organization acting as the customer, obligatory instructions, the partner of board, the lawyer Sergey Patrakeev notes. Any communication could have only advisory nature. If responsible officials were guided by such recommendations, then acted "under the personal liability" and if such "personal liability" is called into question - the corruption structure is available, the expert argues.
2016: The appeal of Rostelecom to court because of failure to pay for works
In 2016 Rostelecom through court demanded from the authorities of the Novgorod region to make payment about 348 million for the first year of project works.
| | The project was implemented for own means Rostelecom which, in fact, acted as the contractor and the investor of the project. Payment under the contract was provided in three stages, the first payment was planned in 2016 in the amount of 348 million rubles. At the time of approach of financial settlement, the administration had questions who should act as the project orderer and money Rostelecom did not come to the address, - quoted the representative Rostelecom regional[1]. | |
Added to the companies that the cost of the created system is confirmed with independent examination. In turn, the acting the governor of the Novgorod region Andrey Nikitin, by data in regional media, noted that penalties which were written out based on operation of cameras were approximately three times less than expected.
Rostelecom then said that the size of the collected penalties depends not only on reliable system operation, but also on other participants using and operating this system.
The lawyer Sergey Patrakeev, the partner of "Kovalyov, Tugusha and Partners" Bar believes that in a dispute on debt collection, most likely the compromise on digit far smaller, than relevant claim requirements will be reached. In search of this compromise the administration of the Novgorod region has many opportunities to delay acceptance of the final decision in the claim, he considers. If a story with investigation of OFAS appears insufficiently, it is possible, for example, to begin to make a claim on quality of an installed system (cameras broke, write out absurd penalties), Patrakeev assumes.
2015: Creation of a system
The contract for creation of a system between ARNO and branch of Rostelecom for the amount more than 733 million rubles was signed in February, 2015. Rostelecom undertook to perform works in 2015, and to pay them by ARNO according to the diagram: in March, 2016 – 348.8 million rubles; March of the 2017th – 255.7 million rubles; March of the 2018th – 129 million rubles.
The cost of the contract included creation of DPC, operation of a system and its service maintenance within three years.
Rostelecom implemented the project at the expense of own means, and payment was provided from the customer at the expense of penalties for violations of traffic regulations collected as a result of operation of a system.
Attracted subcontractor to the agreement performance concluded based on this purchase, Rostelecom – Technoserv company, having signed with it the contract for 483 million rubles.
Notes
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