The Ministry of Health of the Saratov Region could not achieve the replacement of six digital X-ray devices through the court

2023: The Ministry of Health of the Saratov Region could not achieve the replacement of six digital X-ray machines through the court

On January 24, 2023, it became known that the Ministry of Health of the Saratov Region could not achieve the replacement of six digital radiographic devices through the court.

The Regional Arbitration Court refused to satisfy the claim, which was filed against NIPK Electron JSC, a manufacturer of X-ray appliances, and CMC Technologies LLC, which supplied them under two state contracts concluded with the regional Ministry of Health in September 2018.

Later, the ministry said that six devices manufactured by NIPK Electron turned out to be of inadequate quality and had hidden but significant shortcomings at the time of acceptance. Roszdravnadzor confirmed the plaintiff's arguments.

At the request of the NIPK "Electron" in October 2022, a forensic examination was carried out, which showed that the medical equipment in respect of which the requirement to replace the goods was declared does not have significant shortcomings that could serve as a basis for satisfying the plaintiff's claims. The identified disadvantages relate to the recoverable ones.

"In addition, deficiencies may have resulted from their exploitation. After delivery in December 2018 to March 2019, the equipment was used by medical organizations to provide medical care until September 2020, "the press service of the Arbitration Court of the Saratov Region noted[1]

In addition, according to the court decision, the ministry will have to reimburse NIPK "Electron" for forensic examination in the amount of 288 thousand rubles.

The Ministry of Health of the Saratov Region filed an appeal against the decision of the arbitration court of first instance. The complaint will be heard by the 12th Arbitration Court of Appeal. The meeting is scheduled for January 30, 2023.^[2]

2021: Court refuses to rule contract to supply X-ray machine null and void over cartel

On March 15, 2021, it became known that the Arbitration Court of the Saratov Region refused to satisfy the claim of the regional prosecutor's office to invalidate the 2018 state contract for the supply of a digital radiography device. The plaintiff motivated his claims by the presence of a cartel.

The court refused to declare null and void the contract for the supply of X-ray equipment because of the cartel
Photo source: yandex.ru

The court found no grounds for invalidating the executed state contract for the supply of expensive medical equipment. Satisfaction of the claim of the prosecutor's office will entail negative consequences for the Ministry of Health of the region, since the return of the delivered goods will lead to the impossibility of providing high-quality and affordable medical care, according to the court act of March 12, 2021.

The prosecutor's office of the Saratov region asked to invalidate the state contract concluded between the regional Ministry of Health and SMS Technologies LLC in September 2018. The auction for the supply of a digital radiography device with an initial (maximum) contract price (NMCC) of 34 million rubles. two companies participated: directly the manufacturer of NIPK Electron CJSC and the supplier SMS Technologies LLC. The first offered a 2% discount, and the second - 2.5% and became the winner.

It was this circumstance, as well as the identity of competitors' bids at the auction, that became the subject of proceedings by the FAS and law enforcement agencies. In their opinion, the manufacturer a priori can give a discount more than a reseller, and since he did not, it means that there was an agreement between them.

The court indicated that the subject of the contract was the supply of equipment, and any distributor company could perform this service. This means that there was no restriction of competition. In addition, if there were a cartel, then both firms would not give any discounts, and one of them could receive a state contract at the maximum price. The court decision refers to another case about the cartel, which was initiated by the Saratov OFAS in connection with a similar contract. The appellate instance considered unproven the fact of concluding an anticompetitive agreement.

The judge rejected the arguments set out in the examination, which was carried out in the framework of a criminal case on abuse of official powers by employees of the Saratov Ministry of Health and was presented by the prosecutor's office as evidence of his innocence. Experts pointed to the conclusion of contracts at inflated prices. However, while there is no sentence that has entered into force, these materials are not of particular importance, the court decided.

And, finally, if the contract is recognized as null and void, then the funds for which the equipment was purchased are subject to return to the federal budget. However, new bidding is impossible, since the program under which the X-ray machine was purchased has been completed. All this will negatively affect the availability of medical care, according to a court decision, which has not yet entered into force and can be appealed^[3].

2020

The decision of the Saratov OFAS was declared invalid

On December 11, 2020, Zdrav.Expert became aware that the Twelfth Arbitration Court of Appeal found unproven the fact of concluding a cartel agreement between the company NIPK Electron CJSC and the supplier SMS Technologies LLC as part of the purchase of an apparatus for radiography. Thus, he invalidated the decision of the Saratov OFAS.

The corresponding decision on December 10 was published in the "My Arbitrator" system.

In July 2018, the Ministry of Health of the Saratov Region announced an electronic auction for the supply of a digital X-ray apparatus with an initial (maximum) contract price of 17 million rubles. Two participants submitted their applications: NIPK Electron (St. Petersburg), which is a manufacturer of equipment, and SMS Technologies, a supplier. The manufacturer could offer the maximum discount, but he lost only 2% from NMCC. But the supplier undertook to fulfill the contract with a 2.5% discount (for 16.575 million rubles).

Such illogy clearly indicates a conspiracy between the two companies, the Saratov OFAS concluded, considering a complaint against the cartel filed by Nika LLC. The Commission also pointed out the similarity of the bids of the auction participants - the date and time of their creation, the time of submission coincided - and recognized them as violators of the law on protection of competition. The companies strongly objected to this and appealed the decision in court, but to no avail. Then they filed an appeal, which was satisfied with regard to the cancellation of court decisions and OFAS.

According to the definition of the Supreme Arbitration Court of the Russian Federation No. VAS8816/14 of July 22, 2014, the antimonopoly authority must prove that all participants in the competition-limiting agreement received some kind of economic benefit from the results of the auction. In this case, this was not done, the ruling says.

The actions of the organizations did not lead to a violation of the rights of third parties, to the elimination of competitors, to maintaining the price, the contract was concluded at a reduced price, below the commercial proposals, on the basis of which the calculation of the NMCC by the customer was made, and not at the initial, which would be more profitable for the plaintiffs, - said in the judicial act of the appellate instance. - If there is an agreement aimed at the victory of SMS Technologies LLC, NIPK Electron CJSC would refuse to participate in the auction, and the contract would be concluded with the only participant at the initial price, without reduction.

The similarity of the applications does not indicate their joint preparation. It can be explained by copying one application by another person or copying materials from the same public sources (for example, from one site on the Internet). This is not a punishable act.^[4].

The Arbitration Court of the Saratov Region refused to "SMS Technologies" and NIPK "Electron" in the requirement to invalidate the decision of the Saratov OFAS

On August 31, 2020, it became known that the Arbitration Court of the Saratov Region refused to SMS Technologies and NIPK Electron to declare invalid the decision of the Saratov OFAS to convict the plaintiffs of violating the law on protection of competition. Earlier, the defendant received a statement from Nika about signs of violation of antimonopoly legislation in relation to Electron and SMS Technologies with participation in two electronic auctions, the subject of which was the supply of X-ray diagnostic digital devices.

As a result of the auction between the Ministry of Health of the Saratov Region and SMS-Technologies, state contracts were concluded for the supply of six devices worth about 49.8 million rubles. It is believed that "as a result of reaching an anti-competitive agreement with NIPK Electron, a unified behavior strategy was implemented, the purpose of which was to win specific auctions with a contract price close to the initial (maximum)." The OFAS Commission recognized SMS-Technologies and NIPK Electron as violating the law on protection of competition.

Considering the decision of the OFAS illegal, the applicants appealed to the arbitration of the region. According to the case file, both auction participants made 2 similar price offers. Their applications for the supply of the device are ARTs-01-OKO identical to each other. The materials of the case established the circumstances indicating the existence of a connection between the plaintiffs before the date of conclusion of contracts; on the use of a single infrastructure by competitors and joint preparation for trading. There was also an agreement under which Electron supplied 2 X-ray machines to SMS-Technologies. ARTs-01-OKO The court concluded that there was no legal basis for satisfying the stated claims. OFAS established the conclusion and implementation by these companies of an anti-competitive agreement - the cartel, which led to the maintenance of trading prices. Against the background of the investigation of these cases, the Minister of Health of the Saratov Region Natalya Mazina resigned. And the general director of SMS Technologies Oleg Sipyagin asked for protection from the^[5].

Saratov OFAS found NIPK "Electron" and "SMS-Technologies" guilty of cartel conspiracy

On July 22, 2020, it became known that the Office of the Federal Antimonopoly Service (OFAS) in the Saratov Region found guilty the St. Petersburg manufacturer of medical products NIPK "Electron" and the distributor of LLC "SMS-Technologies" in a cartel conspiracy when supplying radiographic devices for the needs of the regional Ministry of Health.

As explained, the companies participated in an auction with an identical nomenclature, during the auction at which the initial maximum contract price (NMCC) decreased by 2.5%. After the victory of SMS Technologies, NIPK Electron shipped the same devices to the distributor at a price of 15 million rubles cheaper. Suppliers tried to appeal the decision in the Arbitration Court of the region, but the court of first instance confirmed the verdict of the OFAS.

As follows from the materials of the OFAS, on July 30, 2018, the Ministry of Health of the Saratov Region announced the purchase for the supply of two radiographic devices at the initial maximum contract price of 17 million rubles and four devices at a price of 34 million rubles. The auction was attended by NIPK "Electron" and LLC "SMS Technologies," which applied for a decrease in NMCC by 2 and 2.5%, respectively. The winner was LLC SMS Technologies, with which a contract was signed at a price of 16.575 million and 33.15 million rubles, respectively, while the price for one device was 8.287 million rubles.

As established by the department, at the same time, companies offered identical devices for delivery (ARTs-01-OKO manufactured by NIPK Electron) and submitted applications identical in text and registration with a difference of two hours. After the recognition of SMS Technology as the winner of the tender on September 17 and 19, 2018, two contracts were concluded between NIPK Electron and SMS Technologies LLC for the supply of two and four ARTs-01-OKO devices by the manufacturer at a price of 5.8 million rubles apiece.

In February 2020, the Saratov OFAS recognized NIPK "Electron" and "SMS Technologies" guilty of cartel conspiracy, considering that the companies did not actually compete with each other, but jointly implemented a unified strategy of behavior, in order to achieve victory in specific auctions by the company "SMS Technologies" with a price close to the initial maximum value of contracts. As a result, the budget suffered damage in the amount of 15 million rubles.

Suppliers appealed the verdict to the Arbitration Court of the Saratov Region, demanding that the OFAS decision be declared illegal. In particular, during the proceedings, they referred to the fact that applications were submitted from various IP addresses and without using a single infrastructure, and the more favorable price for devices for SMS Technologies was dictated by the lack of need to make a bank guarantee.

In mid-July 2020, Arbitration upheld the OFAS verdict. According to the results of administrative proceedings, companies face a fine of up to 25.5 million rubles.

The company "SMS Technologies" appears in the criminal case on the supply of poor-quality medical equipment, which was initiated in July 2019. According to investigators, in October-November 2018, the regional Ministry of Health concluded three state contracts for the supply of 18 ultrasonic devices for medical institutions in the region. In January 2020, officials of the regional Ministry of Health, including Minister Natalya Mazina, began to check for involvement in the supply of the UK . Investigators believe that ministry officials knew about the substandard equipment, but signed a contract "acting out of a different personal interest in the interests of the supplier company."^[6]

Confirmation of cartel collusion between suppliers

On July 10, 2020, it became known that the Arbitration Court of the Saratov Region established the existence of an anticompetitive agreement between the suppliers of X-ray machines. Among them is the company SMS Technologies LLC, which appears in the criminal case of the ex-Minister of Health of the region Natalia Mazina.

In January 2020 Saratov , a criminal case on abuse of office was opened against the ex-Minister of Health of the region Natalya Mazina (Article 285 of the Criminal Code). RUSSIAN FEDERATION A month earlier, she was searched in her apartment in connection with a criminal case on the purchase of low-quality (according to the investigation) equipment. ministry State Office of Public Prosecutor reported on the amount of the contract 33 million, the rubles Investigative Directorate of the Investigative Committee specified that 49 million rubles were given for 2 contracts. At the same time, the supplier of SMS Technologies equipment stated that they had launched a campaign against him to discredit him.

The Antimonopoly Service recognized the companies SMS Technologies and NIPK Electron as violating the law on protection of competition during electronic auctions, the subject of which were 6 X-ray machines. Two companies have set up a cartel to maintain trading prices.

After the regional Ministry of Health announced auctions for 17 million and 34 million rubles, these two companies submitted offers with minimal differences from the initial price. At the same time, NIPK Electron is the manufacturer of the specified equipment, which would allow it to offer a lower price. However, a lower price was offered by SMS Technologies (16,575,000 rubles and 33,150,000 rubles). After the recognition of SMS Technologies LLC as the winner of the auction, this company entered into a supply agreement with NIPK Electron CJSC at a price lower than the proposed NIPK Electron CJSC at the auction.

In addition, the commission established the identity of the applications: the date and time of the creation of the applications, the time of their submission coincided, which indicates the joint preparation of applications by two participants in the auctions^[7].

Reasons and consequences of the initiation of a criminal case in the relationship of the Minister of Health

On January 30, 2020 Zdrav.Expert , the reasons and consequences of initiating a criminal case against the minister became known. health care Saratov region As you know, since 2019, security officials have been trying to prove that Ministry of Health of the Saratov Region the -Electron ultrasound devices purchased in 2018 ULTRASONOGRAPHY allegedly did not comply with the terms of the contract concluded between officials and the supplier. More. here

Saratov OFAS saw the cartel at the auction for the supply of X-ray equipment for LPU

On January 24, 2020, TAdviser became known that the Saratov OFAS saw signs of a cartel conspiracy between SMS Technologies LLC and NIPK Electron CJSC at the 2018 auction for the supply of X-ray equipment for LPU Saratov region. The corresponding decision was made on January 24, 2020.

The case was opened at the request of the firm, which did not participate in the same auctions. Her appeal says that SMS Technologies LLC and NIPK Electron CJSC jointly prepared bids for the auction and only created the appearance of competition, thanks to which SMS Technologies LLC won the contract at an extremely high price close to NMCC.

OFAS agreed with the applicant's arguments and qualified the behavior of organizations as a violation of paragraph 2 of Part 1 of Art. 11 of the Law on the Protection of Competition (agreements are prohibited between competing business entities that lead to or may lead to an increase, decrease or maintenance of trading prices).

A representative of SMS Technologies LLC said that the company does not agree with these accusations and will appeal the decision of the OFAS in accordance with the established procedure^[8].

The winning company is mentioned in the high-profile criminal case of the Minister of Health of the Saratov Region Natalia Mazina.

The Ministry of Health of the region is aware of this decision of the regional OFAS. In this case, any comments from our department are inappropriate, since the decision of the regulatory body concerns suppliers, and the Ministry of Health of the region is the customer of medical equipment. However, we can explain that the tender documentation that we prepared for the purchase of equipment was carefully checked at the stage of procurement by various structures, including twice regional OFAS. There were no violations in its preparation, - explained in the Ministry of Health of the region.[9]

Conducting searches in the office of the Minister of Health due to abuse of authority during the procurement of equipment for children's clinics

On January 17, 2020, TASS reported that law enforcement officers searched the office of the Minister of Health of the Saratov Region Natalia Mazina. The searches are related to the case of abuse of office during the procurement of equipment for children's clinics. Read more here.

2019: Petition to involve the Ministry of Health of the Saratov Region as an accomplice in the case of "anti-competitive" purchase of X-ray machines

On October 15, 2019, TAdviser became known that the Saratov OFAS continues to consider the case on the grounds of an anti-competitive agreement (paragraph 2 of part 1. Article 11 of Federal Law No. 135 - FZ "On Protection of Competition") during auctions for supplies to hospitals and clinics of the region of digital X-ray machines. The case was initiated at the request of a potential bidder - Nika LLC.

Recall that in the summer of 2018, by order of the Ministry of Health, two electronic auctions were held for the supply of six X-ray devices. The initial auction price is 17 and 34 million rubles, respectively. In both cases, there were two participants - NIPK Electron CJSC (according to data from open sources, the company is registered in St. Petersburg) and SMS Technologies LLC (Saratov). Moreover, the last participant offered the products of the first - in fact, "Electron."

Both participants in both auctions played to lower the initial price. According to the public procurement website, in the first case, Electron offered not 17, but 16.66 million, but SMS Technologies - 16.57 million. In the second auction, the situation repeated itself - the difference between the proposals was minimal, but also not in favor of Electron (33.32 and 33.15 million rubles, respectively). That is, it turned out that the product supplier was strangely able to offer a price lower than its manufacturer, as if it had withdrawn from competition.

The authors of the complaint to the OFAS believe that all these schemes were necessary only in order to ensure the viability of auctions. After all, the very principle of bidding implies that even formally there should be at least two of their participants.

At one of the last meetings, representatives of Nika LLC also made a petition to involve the regional ministry of health as an accomplice.

In our opinion, this anti-competitive agreement arose much earlier, even in the process of preparing the auction. And in addition to the named companies, the Ministry of Health participated in the agreement. Evidence of this, we believe, is provided to the commission. So, in our opinion, all the tender documentation was originally drawn up, "sharpened" for a single manufacturer - NIPK "Electron." In September-October 2018, when the audit was carried out, the Ministry of Health announced that in addition to Electron, there is another manufacturer of the same equipment with the same features - OOO Ekran-Rentgen. However, according to the extract from the Unified State Register of Legal Entities, which we also provided to the commission, OOO Ekran-Rentgen was liquidated back in 2010, the registration certificate for its production apparatus ended in 2012. The Ministry of Health could not receive commercial proposals for a possible supply from the liquidated organization purely physically, the delivery of the radiographic digital apparatus itself, to the possibility of which officials referred, was deliberately unenforceable. Based on all the above, we ask you to involve the ministry under Art. 16 of the Federal Law "On the Protection of Competition," where we are talking about the prohibition of government agencies to participate in an anti-competitive agreement[10], stated the representative of Nika LLC Gelena Alekseeva

The decision on this petition should be made on October 17, 2019.

2018: Purchase of medical equipment for children's hospitals in violation of GOSTs

In 2018, in the Saratov region, state purchases of medical equipment for the needs of children's medical institutions in at least three cases were carried out with disregard for the requirements of both the customers themselves and the current GOSTs, the Public Opinion (OM) magazine reported on October 24, 2018 following an investigation. The winner in all cases was the Saratov company "SMS Technologies," specializing in the integrated equipment of medical and preventive institutions.

In particular, the OM had at its disposal correspondence related directly to the purchases by the Ministry of Health of the Saratov Region of two expensive digital X-ray machines for children's hospitals No. 4 and No. 7 of Saratov. An auction to select the supplier of this equipment was announced in July 2018. The customer was the State Agency for the Centralization of Procurement. The initial (maximum) price of the state contract was announced at 17 million rubles.

The auction itself was supposed to take place on September 10, but was prevented by a complaint received by the OFAS in the Saratov region from Argus-CS LLC registered in Moscow, which, according to the information presented on the company's website, "cooperates with a number of regional trade and service companies for the supply, maintenance and repair of medical equipment in various regions of the Russian Federation and other countries."

OM cited a fragment of the complaint of Argus-CS LLC:

The Customer has neglected the effective GOSTs... For example, in the description of the X-ray emitter, only the presence of two focal spots is required. But GOST R 57081-2016 includes a significantly larger number of requirements not reflected by the Customer. At the same time, drawing an analogy, for example, with cars, the emitter can be compared with wheels (and, for example, ECR - with an engine), the requirement for two focal spots looks like a requirement that the wheels should be round. But such descriptions and requirements are clearly not enough, as evidenced by GOST, developed by a respected and impressive group of experts. Returning to the emitter - the dimensions of each of the foci, the heat capacity of the tube and anode and a number of other parameters according to GOST are important, but the Customer did not include the listed requirements in the technical specification of electronic documentation... Or, for example, for the GOST R detector, the ad hoc parameter "Spatial resolution" is 57084-2016 included without justifying the parameter itself and the need to turn it on (but with justifying the selected value of this parameter), but at the same time a number of such important parameters as quantum efficiency, modulation function are not included, which affect, among other things, the safety of using equipment for patients in terms of dose loads... The gurney table is also described without taking into account the specifics in children's institutions: the deck height of 770 mm corresponds to the height of a regular writing table, access of patients less than 170-180 cm is not acceptable.

According to the authors of the complaint, all these characteristics are "sharpened" for a specific participant:

"The tripod part specified in the registration certificates is exclusively provided by NIPK" Electron "and according to the current rules of the Customs Union can be imported exclusively by this legal entity.... According to the protocol, both participants offer equipment manufactured by CJSC Research and Production Company Electron. One of which is the NIPK Electron itself, - explained in the appeal of Argus-CS LLC.

The violations outlined in the complaint were also noticed in the regional Ministry of Health. In particular, one of the letters to the first at that time Deputy Minister of Health of the Saratov Region (and as of October 2018 - to the Minister) Natalya Mazina says the following:

During the working meeting, after studying the technical part of the auction documentation, the main freelance specialists of the Ministry of Health of the region expressed the opinion that the technical characteristics of the X-ray diagnostic digital apparatus for radiography did not correspond to the needs of children's clinics, namely, they did not meet the requirements of GOST R 57090-2016. In addition, the submitted technical specification does not contain devices for linear tomography, which does not meet modern requirements and standards of medical care in pediatric practice.

Moreover, as follows from the data posted on the public procurement portal, the documentation for this auction was edited: initially the terms of reference were different. On condition of anonymity, this fact was also confirmed by the regional Ministry of Health: allegedly, by decision at the time of the auction, Minister of Health Vladimir Shuldyakov (left the post on October 8, 2018 - approx. Zdrav.Expert), the first application sent to manufacturers had to be urgently withdrawn under the pretext of approving the updated terms of reference.

Nevertheless, the Federal Antimonopoly Service did not satisfy the complaint of Argus-CS LLC without seeing any violations in the actions of the customer. The agency's response of September 11, 2018, in particular, states that "by virtue of the Law on the Contract System, determining the characteristics of a product falls within the competence of the customer."

As a result, the auction took place despite the violations identified by the experts of the regional Ministry of Health, and with the winner of the auction - LLC SMS Technologies, whose director is Oleg Sipyagin - a contract was signed in the amount of 33.15 million rubles, almost twice the initially declared value.

However, on September 27, the head of the department of budget accounting, public procurement and monitoring of the activities of institutions of the Ministry of Health, Yuri Potapov, the direct curator of the director of the State Procurement Centralization Agency Vladimir Efimkin, sent an official letter to the director of SMS Technologies LLC Sipyagin with a request "to consider the possibility of supplying a medical device with an improved characteristic in terms of the presence of a linear tomograph." This fact, according to the representative of the OM, confirms the unsuitability of the devices delivered to children's hospitals for tomography according to standards.^[11]

Read about the other two purchases with the participation of SMS Technologies LLC in the articles:

• Delivery of stationary ultrasound devices for 50.7 million rubles
• Supply of artificial lung ventilation devices for 17 million rubles

Notes