The concept and types of crimes committed by contract executors in the field of state and municipal procurement

Kitsing Vladimir Arvuvich ORCID: 0009-0008-7929-7308 Postgraduate student of the Department of Public Law of the Faculty of Law of the State Academic University of the Humanities 119049, Russia, Moscow, lane. Maronovsky, 26 kitsingvladimir@gmail.com

Introduction

State and municipal procurement is a tool for ensuring the basic needs of the state, which is subject to certain requirements and standards. The latter, in turn, are fixed by regulatory legislation in the Federal Law "On the Contract system in the field of procurement of goods, works, services for State and Municipal Needs" dated 04/05/2013 No. 44-FZ. However, in reality, standards remain "paper-based", and practice is full of a huge number of violations in procurement activities, which is demonstrated by statistics.

Thus, according to the information provided by the Accounting Chamber of the Russian Federation, in 2020, about 83,500 violations were detected in the field of procurement. In 2021, the prosecutor's office established the presence of 170,000 violations of legislation in the field of public procurement, and 800 criminal cases were also initiated. Similar statistics are observed for 2022: the number of violations identified by the prosecutor's office amounted to more than 168,000, and more than 1,056 materials were sent to the preliminary investigation authorities, for which 748 criminal cases were initiated.

In addition, according to a study conducted by PricewaterhouseCoopers, Russian state and municipal procurement is truly unique, because unlike other countries, illegal actions in domestic public procurement are committed at all stages of the tender ^[1].

The high level of criminogenicity of the sphere in question is also explained by the latency of crimes committed in it, which is based, among other things, on the influence of customers on contract performers, as well as on special "customs" observed by both sides.

Participants in procurement activities on the side of performers do not report violations committed by their colleagues, they accept the conditions offered by the customer, regardless of the legality of the latter. After all, non-compliance with these "customs" may entail the application of sanctions to the contractor, excluding the latter's further participation in procurement, for example, the requirement to fulfill the terms of the contract, which would not have been imposed in the case of a preliminary agreement, the imposition of fines, entry into the register of unscrupulous suppliers ^[2].

The ever-increasing number of violations in the field of state and municipal procurement, combined with their latency, causes serious damage to the overall economic development of the country, as well as affects public confidence in state and municipal institutions.

At the same time, the interest of the scientific community is more focused on the crimes of officials in the field under consideration, which ignores the problems associated with criminal acts committed by contract executors.

Based on all of the above, it can be concluded that a detailed criminal law and criminological characterization of crimes committed by contract executors in the field of state and municipal procurement is required. In order to obtain the most complete and reliable characteristics of these criminal acts, it is necessary to classify them in accordance with the characteristics common to the latter and formulate a universal definition for these crimes. In connection with the above, it is necessary:

• to analyze judicial practice related to crimes in the field of state and municipal procurement committed by contract executors;
• to establish the range of acts forming a group of crimes in the field of state and municipal procurement committed by contract executors;
• classify these criminal acts according to their common characteristics;
• to formulate a universal definition for crimes in the field of state and municipal procurement committed by contract executors.

The methodological basis of the study was made up of general scientific methods, in particular analysis, synthesis, logic, deduction, induction, which made it possible to draw conclusions from the materials of judicial practice, summarize and divide by types the criminal acts committed by contractors in the field of procurement, in accordance with certain criteria in the author's classification, as well as to give a universal definition for these crimes.

In addition, such a private scientific method of cognition as the method of legal statistics was used, namely, observation and substantiation of the prevalence of crimes in the field of state and municipal procurement of the total number of violations committed and criminal cases initiated in this area, as well as statistical grouping of analyzed court decisions to clarify the percentage of certain criminal acts of contract executors in all their totality.

The range of acts that relate to procurement crimes committed by contract executors and their classification

As mentioned earlier, researchers whose scientific interest is focused on criminal acts in the field of state and municipal procurement, more often choose crimes of officials, the whole set of criminal acts in this area as the subject of research, or choose other private criteria to identify the group of crimes in the field of procurement that interests them.

So, it is worth paying attention to the research of the authors, namely Sh.M. Shurpaev, O.V. Sinchurin, who focused their attention on a group of corruption-related crimes in the field of state and municipal procurement and formulated the author's classifications of these criminal acts according to their specific criteria.

Thus, O.V. Sinchurin classifies corruption crimes in the field of procurement into types of crimes depending on the stage of procurement: procurement planning, supplier identification, conclusion of a state contract, contract execution, procurement monitoring, audit in the field of procurement, control over compliance with contract legislation ^[3].

Sh.M. Shurpaev, in turn, one of the possible criteria for dividing crimes in the field of state and municipal procurement of a corrupt orientation into types determined the situation of committing crimes: committed with participation in competitive procedures, committed at the conclusion of a state contract, committed during the execution of a state contract ^[4].

The above classifications have advantages within the framework of the research goals that were set for these authors, and can also be applied to criminal acts committed by contractors in the field of procurement. However, the latter, in turn, speaks about their abstractness, the lack of specificity related to a specific group of criminal acts.

Within the framework of this study, the result is an individualized classification applicable only to crimes in the field of state and municipal procurement committed by contract executors, the consideration of which will begin with the definition of the range of criminal acts included in it.

Thus, based on the analysis of judicial practice (a sample of 60 sentences related to crimes in the field of state and municipal procurement committed by contract executors), it was revealed that the following criminal acts are most often committed by contract executors: 55% of the specified sample was fraud (Article 159 of the Criminal Code of the Russian Federation), 50% - bribery (Article 291 of the Criminal Code of the Russian Federation) and the remaining 5% of the crime provided for in Article 178 of the Criminal Code of the Russian Federation, namely, restriction of competition.

Also, in practice, there are other types of criminal acts that constitute a set of crimes with the above, for example, Article 238.1 of the Criminal Code of the Russian Federation, which provides for liability for illegal trafficking in medical devices, medicines and biologically active additives, which are often the subject of purchases.

In accordance with the established range of criminal acts and circumstances of the analyzed judicial practice, the following classification was derived.

The first type of crimes committed by the executors of state and municipal contracts are the "main ones", which are also divided into subspecies: crimes with collective criminal behavior and individual criminal behavior.

In turn, crimes involving collective criminal behavior are divided into:

• a criminal vertical agreement where the parties are the customer and the contractor of the contract;
• a criminal horizontal agreement, which, accordingly, is formed only by the executors of the contract.

At the same time, a vertical agreement can be inviolable if it has any legal justification and does not have a corrupt orientation. Such, for example, is an additional agreement on the supply of goods with improved characteristics, provided for in Part 7 of Article 95 of the Federal Law "On Protection of Competition" dated 07/26/2006 No. 135-FZ (hereinafter – the Federal Law "On Protection of Competition").

The criminal vertical agreement, in turn, has its own special indicators – criteria, which are specific recurring legal situations indicating the existence of a criminal agreement.

Examples of these criteria are contained in some departmental clarifications. For example, in the Order of the Prosecutor General's Office of Russia dated 14.01.2021 No. 6 "On the organization of prosecutorial supervision of the implementation of legislation in the field of procurement" it is mentioned that special attention should be paid to identifying and suppressing the facts of payment for outstanding work, unproven services, undelivered goods, overestimation of the volume of work.

Also, some of the criteria are described in the specialized literature. For example, A.S. Kinev identifies the following criteria for a criminal horizontal agreement: 1) the winning of the majority of trades by the same company; 2) the winning of a number of companies in turn ("carousel"); 3) participation in the bidding of a minimum number of participants, and so on ^[5].

However, in the course of the study, it was found that, nevertheless, the largest number of criteria for determining the existence of criminal agreements can be identified by judicial practice in relevant criminal cases.

Thus, it was established that the criteria for a criminal vertical agreement are:

• participation in the formation of tender documentation ^[6];
• inclusion of limiting conditions in the terms of reference ^[7];
• getting information about the competition before it starts ^[8];
• regular victory of the same participants ^[9];
• illegal refusal of admission to participate in the auction ^[10];
• acceptance of substandard or unfulfilled works ^[11];
• payment before the execution of the contract ^[12].

Thus, in the sentences of the Lefortovsky District Court of Moscow dated 09/01/2021 in case No. 01-0298/2021 and 09.09.2021 ^[13] in case No. 1-297/2021 ^[14], the director of the Department for work with state bodies was brought to responsibility for giving (Article 291 of the Criminal Code of the Russian Federation) and receiving a bribe (Article 290 of the Criminal Code of the Russian Federation) the supplier and the head of the Procurement Department of the Pension Fund of the Russian Federation, respectively, for the fact that the latter, for remuneration from the supplier's representative, systematically provided official information about upcoming public procurement, assisted in the preparation of technical specifications and the formation of the initial maximum contract price (hereinafter – NMCC), contributed to the victory in public procurement and in the conclusion of government supply contracts hardware and software to the supplier and its controlled entities.

In addition, quite often the actions of the participants in the vertical agreement are qualified as fraud (Article 159 of the Criminal Code of the Russian Federation), which also has a corruption orientation, that is, theft using the official position of the customer.

For example, in the verdict of the Oktyabrsky District Court of Belgorod dated 12/29/2022 in case No. 1-562/2022 ^[6], a group of persons by prior agreement, consisting of a representative of the customer and the supplier, committed fraud in the following circumstances: the head of the bacteriological laboratory of the hospital misled the head of the hospital regarding the acute need for reagents by concluding a contract with a single supplier, justifying this by the urgent need to combat Covid-19. At the same time, the head kept silent about the available surpluses of these reagents. The head of the hospital gave the go-ahead for the conclusion of the contract, for which a subsidy was allocated. Subsequently, the supplier, in collusion with the manager, in agreement with the latter, actually supplied reagents for a smaller amount – the goods in the amount of 10,236,680 rubles were not delivered. The delivery in an inappropriate volume was accepted because the acceptance was controlled by the manager. At the same time, the latter had to make up for the missing reagents with unaccounted surpluses available in the hospital, and the participants divided the designated amount of undelivered goods among themselves.

Let's return to the general characteristics of the types of crimes committed by contract executors in the field of state and municipal procurement, and indicate that the collective criminal behavior of contract executors, called a criminal horizontal agreement, is aimed at limiting competition and has the following signs: 1) an agreement between competitors (oral or written); 2) restriction of competition, that is, the occurrence of one of the consequences provided for in Part 1 of Article 11 of the Federal Law "On Protection of Competition"; 3) causing major damage (10,000,000 rubles) or extracting large-scale income (50,000,000 rubles).

At the same time, an unapproachable horizontal agreement not only does not have the above features, but may also fall under the exceptions provided for by the Federal Law "On Protection of Competition", for example, if these are coordinated actions of economic entities belonging to the same group of persons, provided that one of such economic entities has established control over another economic entity, etc.

A criminal horizontal agreement is less common than a vertical one, but in practice it still occurs and has the following criteria:

• conclusion of subcontracting agreements with bidders after the victory ^[15];
• the tender application is submitted from a single IP address ^[16];
• mass simultaneous withdrawal of participants from the tender for similar reasons ^[17];
• a significant difference in the prices of tenders for participation with one and another set of participants ^[18];
• victories are won without reducing the NMCC, or this decrease is insignificant ^[19];
• submission of applications with a small time difference ^[16];
• There is close financial and economic cooperation between competing companies ^[20].

For a visual demonstration, let us turn to the verdict of the Leninsky District Court of the city of Saransk dated 06/08/2022 in case No. 1-194/2022 ^[21], according to the circumstances of which suppliers of medical devices developed "cartel" behavior, in accordance with which the sequential coordinated execution of auction steps was carried out with a slight decrease in the NMCC. At the same time, the winning participants of the organized group subsequently attracted other participants of the cartel agreement participating in the tender within the framework of subcontracting agreements. In addition, applications from different persons for the tender were submitted from the same IP address. The actions of the persons were qualified under Part 1 of Article 178 of the Criminal Code of the Russian Federation.

With all of the above, the possibility of individual criminal behavior of the contractor is by no means excluded, which causes the second subspecies of criminal acts.

Here it is worth highlighting crimes against property, the predominant share of which, according to statistics, is fraud ^[22], which, in turn, in the field of public procurement is characterized by the use of deception as a method of commission, expressed in:

• overestimation of the contract price ^[23];
• overestimation of volumes ^[24];
• improper performance of the contract ^[25].

So, in the verdict Kirovsky District Court of the city of Saratov dated 04/23/2020 No. 1-10/2020 ^[26] the person involved in the criminal case initiated on the grounds of a crime under Article 159 of the Criminal Code of the Russian Federation became the director of the company, who, according to investigators, being a subcontractor under a state contract for laying copper cable to sewage treatment plants, received funds without actually fulfilling the conditions the contract, and at the same time overestimated the price by concluding fake subcontracting agreements with fictitious organizations.

It is worth noting that it is possible to qualify the actions of the executor according to the "additional" composition in case of harm not only to property relations, but also to another object under criminal law protection, with an ideal combination of crimes. For example, as in the verdict of the Central District Court of Volgograd dated 02/28/2022 in case No. 1-120/2022 ^[27], an individual entrepreneur, under a state contract, supplied medical devices – anti-bedsore mattresses to the Volgograd Regional branch of the Social Insurance Fund of the Russian Federation. Subsequently, it was found that some of the mattresses supplied by him did not comply with the terms of the government contract and were purchased in China. In addition, tags with false information were sewn to the mattresses, which were made independently by the entrepreneur. The latter's actions were qualified as the sale of substandard medical devices, as well as theft of other people's property by deception on an especially large scale, that is, under Part 1 of Article 238.1 of the Criminal Code of the Russian Federation and Part 4 of Article 159 of the Criminal Code, respectively.

Finally, after establishing the range of criminal acts in the field of public procurement committed by contract executors and their classification, it is possible to formulate a definition of the latter as a system of crimes.

Definition of crimes in the field of state and municipal procurement committed by contract executors

In order to give an accurate definition of the concept of crimes in the field of state and municipal procurement committed by contract executors, it is necessary to establish the range of objects that the criminal acts in question encroach on.

According to Sh. M. Shurpaev, crimes in the field of procurement cause material damage to the consolidated budget system of the Russian Federation, which is accompanied by inefficient spending of budget funds, non-fulfillment and (or) improper fulfillment of the terms of an order or contract in the field of public procurement ^{[28, p. 6]}.

In turn, I.A. Lyuby points out the negative impact of the crimes under consideration on the normal functioning of state bodies, the infliction of material damage to the state and society by these crimes through the conclusion of obviously unprofitable contracts, their poor-quality execution, unjustified price increases in socially significant areas, violation of the principle of freedom of competition guaranteed by the Constitution Of the Russian Federation ^{[29, p. 13]}.

It is impossible not to agree with the previously mentioned researchers, however, in order to individualize the definition being formulated, it is necessary to refer to the object of criminal encroachment of each crime that constitutes a system of crimes in the field of state and municipal procurement committed by contract executors, namely malfeasance, embezzlement, restriction of competition and "additional" compositions.

Thus, the specific object of official crimes is public relations related to state power, with the interests of public service and service in local governments. Simply put, malfeasance interferes with the normal activities of government agencies.

The object of embezzlement, in turn, is the relationship of ownership, in this case the state, namely the assets of the budget, which are allocated to pay for state and municipal contracts.

In order to limit competition in general, one can refer to the direct object of Article 178 of the Criminal Code of the Russian Federation, which is public relations that develop in the competition procedure regulated by antimonopoly legislation, as a constitutional value.

In addition, do not forget about the possibility of a negative impact on other public relations associated with the implementation of procurement activities.

Thus, it turns out that crimes in the field of public procurement committed by contract executors are intentional socially dangerous acts prohibited by the norms of the Criminal Code of the Russian Federation under threat of punishment, which:

• They destabilize the normal functioning of public authorities;
• they cause material damage to the budget system of the Russian Federation, which also entails harm to society and to each individual citizen who is a part of it;
• infringe on the freedom of competition in the course of public procurement;
• they entail harmful consequences for other relations related to state and municipal procurement.

Conclusion

So, in accordance with the above, it can be concluded that the "main" as a type of crimes committed by contract executors in the field of public procurement are divided into two subspecies: collective and individual. Collective agreements, in turn, are represented by a criminal vertical agreement characterized by a corruption orientation and including both official offenses and embezzlement, and a criminal horizontal agreement aimed at limiting competition. Also, contract executors commit crimes alone – most often this is fraud, namely theft of other people's property by deception. In addition, part of the system of crimes in the field of state and municipal procurement are "additional" compounds arising from an ideal combination with the "main" ones.

At the same time, based on the establishment of the range of acts that are committed in the field of state and municipal procurement by contract executors and their classification, it was possible to formulate a universal definition of these criminal acts, namely as prohibited by the norms of the Criminal Code of the Russian Federation under threat of punishment of intentional socially dangerous acts that destabilize the normal functioning of public authorities, cause material damage to the budget system of the Russian Federation, This also entails harm to society and to each individual citizen who is a part of it, encroaches on freedom of competition in the course of public procurement, and entails harmful consequences for other relations related to state and municipal procurement.

These research results, in our opinion, will have a positive impact on further research aimed at establishing the criminal law and criminological characteristics of crimes committed by contract executors in the field of state and municipal procurement.