The supply of products from companies that have left Russia is turning into a dangerous business: those who fail end up on the register of unscrupulous suppliers and lose the opportunity to participate in government contracts.
There are no parallels
The Rusimport company, which promised to supply the Votkinsk Plant with metal-cutting tools from the Japanese company TUNGALOY, which left Russia, will be on the register of unscrupulous suppliers for two years. The Moscow Arbitration Court confirmed the legality of the decision taken by the Federal Antimonopoly Service (FAS) on June 27. The decision has not entered into force, and the company has a month to appeal.
This story is somewhat revealing. Votkinsk Plant is engaged in the production of rocket technology, in particular, it produces Iskander-M complexes. The company also has civil production facilities, including oil and gas equipment, drilling tools, and shut-off valves.
The plant has been living under sanctions since the summer of 2022. In 2023, the company needed a metal-cutting tool. The plant has placed an application in the AST GOZ system for 40 million rubles. Only the Izhevsk company Rusimport responded, and an agreement was signed with it.
It was assumed that the Votkinsk Plant would send applications for the number of necessary tools, and Rusimport would supply them. However, the company did not receive part of the order, for example, the supplier did not have milling heads.
The Japanese company TUNGALOY, which once actively supplied its tools to domestic enterprises, left Russia in 2022. The parallel supply mechanisms, according to Rusimport, did not work due to the position of the Japanese government, which actively prevents such phenomena. There are no alternatives to milling heads from a Japanese company in the domestic market and in friendly countries. In addition, Rusimport faced problems when transferring payments to foreign currencies.
Votkinsky Zavod waited for almost a year, then terminated the contract unilaterally and appealed to the Federal Antimonopoly Service with a complaint against Rusimport, the antimonopoly authority included the company in the register of unscrupulous.
The arguments that the supplier made every effort to get the necessary parts for the company did not convince the antimonopoly authority, and then the court. The actions of Rusimport are qualified as a "significant violation of the contract." It is unclear how the company Rusimport intends to conduct its business in the future, the company did not respond to Mashnews' request.
The register of unscrupulous includes not only enterprises that directly supply parallel imports, but also firms that provide intermediary and engineering services. So, on June 2, by decision of the Federal Antimonopoly Service, RT-Engineering was included in the register, which was supposed to supply grinding and polishing machines for the needs of ODK-Saturn and carry out commissioning. The purchase took place through the Russian company Apogee-Metal, but it turned out that the products did not meet the technical specifications. In such cases, the supplier must replace the product with a suitable one. However, RT-Engineering was unable to find a replacement due to the sanctions. Apogee-Metal also threw up its hands — there were no machines with the necessary characteristics that are available for prompt order and delivery. By the way, Apogee-Metal itself was also on the register for not delivering a batch of CNC machines to Mosvodokanal. The Metal Industry company was also included in the list, which was unable to supply Sevmash with foreign equipment from companies that had left Russia.
It's full of risks
"As a general rule, sanctions and their consequences, including price changes and the issue of parallel imports, do not apply to force majeure and do not release the supplier from contractual liability," lawyer Harutyun Sargsyan told Mashnews. The expert noted that the courts and the antimonopoly authority proceed from the assumption that all risks and restrictions, as a rule, were clear to the parties before the conclusion of the contract.
Harutyun Sargsyan also drew attention to the fact that not only suppliers who work under the state defense order have a risk of being included in the register of unscrupulous. In particular, the expert cited the example of the STK Polyus company, which tried to supply equipment for Alrosa from the companies Dinotec GmbH and SAN-PLUS extra that left Russia. As a result, some options were found, but they did not meet the deadlines. Alrosa refused to wait, and its counterparty was included in the register for violating the terms of the agreement.
Despite the fact that there are quite a lot of disputes with the FAS about whether a company is unscrupulous, according to Harutyun Sargsyan, there is no single approach at the judicial practice level when considering such cases. And in theory, inclusion in the registry can be appealed. As an example, the lawyer cited the story of NB Trans Techcomplete, which challenged the decision of the Federal Antimonopoly Service to include it in the register due to the disruption of the supply of devices for the needs of Oboronenergo. The main argument was the rise in prices and the refusal of contractors to supply the necessary equipment. However, this dispute concerned the 2022 agreement, when sanctions were just being imposed and companies offering their services could not really assume that many supply channels would close soon.
"Courts often proceed from the fact that entrepreneurial activity is inherently risky, and the procurement participant, assuming obligations under a government contract, should have anticipated or taken into account possible difficulties, including those related to the geopolitical situation," the vice president of the Association of Lawyers for Registration, Liquidation, Bankruptcy told Mashnews. and judicial representation, Deputy Head of the Federal Mediation Center, Chairman of the All-Russian Trade Union of Mediators Vladimir Kuznetsov. According to the source, both the FAS and the courts adhere to the principle of strict compliance with the terms of government contracts.
A two-year break
"The current legislation does not provide for the "permanent" inclusion of companies in the register of unscrupulous suppliers. Information about the company is automatically excluded from the register after two years," lawyer Andrey Misarov, managing partner, chairman of the Moscow Bar Association Advocate, told Mashnews. Accordingly, if the companies' attempts to appeal against being blacklisted through the courts have not been successful, they will have to wait two years.
By itself, being on the unscrupulous register for a company does not mean that it ceases to operate. However, this is a serious reputational loss for the supplier company, and it is also cut off from most purchases. Companies that place an order on trading platforms usually indicate in the requirements to the supplier that it should not be in the register of unscrupulous. This is a mandatory requirement for deliveries under the state defense order. Therefore, even if a company has been working in the market for many years and fulfilled all its obligations, one failed purchase of foreign products can knock it out of the supply chain for two years.
Shared responsibility
It is noteworthy that the customer enterprises themselves can perfectly understand that the counterparty is not to blame in the global sense. But they are forced to file a complaint with the FAS and demand that the company be blacklisted. Sometimes such stories get into the public field. For example, in the text of the decision of the Arbitration Court of the Penza Region on the dispute between the regional Federal Antimonopoly Service and the VBT company, it is stated that the customer, JSC Radiozavod, submitted an application for inclusion of the counterparty in the register of unscrupulous [...] persons pursuant to 223 FZ and the Unified Procurement Regulations of Rostec State Corporation. It is emphasized separately that the company was forced to complain about the counterparty, although the malfunction in its work did not affect the work of the enterprise, including the State Defense Order.
A similar system of appeals applies to contracts related to various services and supplies of goods, including parallel imports.
"The customer is forced to "attack" his supplier in order not to be held responsible for the failure to meet deadlines," Anatoly Semenov explained and stressed that the fulfillment of obligations under the State Defense Order is controlled by the prosecutor's office, and this "actually obliges customers to look into any controversial issue regarding the execution of contracts."
The head of the Association characterizes the system itself, when suppliers risk their business by trying to get the necessary products for strategic enterprises, extremely negatively and associates it with the position of the FAS, which, according to the source, is largely guided by the position of the Ministry of Industry and Trade, which has embarked on technological sovereignty at any cost.
Anatoly Semenov sees the harsh conditions for companies that supply products through parallel imports as a kind of struggle against competition from foreign products in order to encourage customers and suppliers to choose domestic products.
At the same time, there may be no analogues in specialized segments, for example, components for machine tools of a certain brand. Accordingly, for a strategic enterprise, the only channel for obtaining the necessary products is the supplier company, which will accept all the risks and attempt to get the products anyway.
Anatoly Semenov has no doubt that there will be interested parties.
The FAS has not yet responded to Mashnews' request.
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Votkinsk Plant is a city-forming enterprise of the city of Votkinsk in Udmurtia, which traces its history back to 1759. Initially, it specialized in the smelting of anchors, ship hulls, and bridges. With the development of railways, it began to produce railway machinery and equipment. Currently, Votkinsk Plant is known as a manufacturer of Topol-M intercontinental missiles, and the company also produces equipment for nuclear power plants and oil and gas production enterprises, cutting tools, and tooling. The plant employs about 11,000 people.
