Status of the drafter securing the contract. The procedure for crediting to the budget amounts contributed by a procurement participant as security for an application for participation in tenders or execution of a contract has been clarified.

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The customer is obliged to establish a requirement to ensure the execution of almost all state and municipal contracts. The only exceptions are certain types of contracts that are concluded as a result of procurement from a single supplier.

The method of ensuring the execution of the contract is determined by the procurement participant with whom the contract is concluded (Part 3 of Article 96 of Law No. 44-FZ).

To fulfill the contract, the participant may:

Deposit funds into the customer's account;

Provide a bank guarantee.

The contract is concluded only after the participant provides security for the execution of the contract (Part 4 of Article 96 of Law No. 44-FZ). It is necessary to check the provided security before the customer signs the contract (Part 4, Article 96 of Law No. 44-FZ).

The payment order for the transfer of funds as security for the contract is filled out according to the general rules (Chapter 5 of the Regulations on the rules for the transfer of funds approved by the Bank of Russia N 383-P, Appendix No. 1 to the Regulation of the Bank of Russia N 383-P). In this case, in the “Purpose of payment” column it is necessary to indicate “Contract performance security”, as well as reflect information about the purchase.

When providing security in this way, it is necessary to verify the receipt of funds in full to the account specified in the procurement documentation or draft contract.

Can a third party contribute funds as security for the performance of a contract on behalf of a participant?

The legislation on the contract system does not contain provisions obliging the procurement participant to contribute funds personally as security for the execution of the contract. If such an obligation is not established by the customer in the procurement documentation (notification, procurement documentation, draft contract), a third party has the right to transfer funds for the participant.

There is an example where the court declared unlawful the actions of a customer who refused to accept security for the performance of a contract from a third party (Resolution of the Ninth Arbitration Court of Appeal N 09AP-52950 in case N A40-126679). A similar position is found in the practice of antimonopoly authorities (Decision of the Komi OFAS Russia N 04-02/2548).

The Russian Ministry of Economic Development takes the opposite approach. According to the department, a third party does not have the right to provide security for the execution of a contract instead of the participant with whom it is concluded, since such a possibility is not provided for by the provisions of Law No. 44-FZ (Letters No. D28i-2060, No. D28i-1893).

Therefore, in order to avoid controversial situations, the participant is recommended to personally transfer funds to the customer’s account as security for the execution of the contract.

The second way to ensure the execution of a contract is to issue a bank guarantee (Part 3 of Article 96 of Law No. 44-FZ).

To issue a bank guarantee you need:

1. Determine the bank that will act as a guarantor for the execution of the contract under a bank guarantee. Such a bank must be included in the list of banks that meet the established requirements for accepting bank guarantees for tax purposes, which is maintained by the Ministry of Finance of Russia and posted on its official website (Part 1, Article 45 of Law No. 44-FZ, Article 74.1 of the Tax Code of the Russian Federation).
2. Clarify the conditions for issuing a bank guarantee and the list of documents required by a specific bank to issue a bank guarantee.

Based on the results of issuing a bank guarantee, the participant must:

1. Receive the following documents from the bank:

A copy of the bank guarantee agreement;

Bank guarantee in writing on paper or in the form of an electronic document;

An extract from the register of bank guarantees.

2. Make sure that the issued guarantee meets the requirements established by Art. 45 of Law No. 44-FZ.

The customer included in the procurement documentation a requirement to ensure the fulfillment of warranty obligations under the contract. Does he have the right to recognize a procurement participant who did not provide such security as having evaded concluding a contract?

There are two approaches to this issue:

Approach 1: No, you have no right. Law No. 44-FZ does not regulate legal relations to ensure warranty obligations arising after the fulfillment of the main obligation under the contract. For this reason, the customer, who has established the requirement to provide guarantee obligations, does not have the right to refuse to enter into a contract if the guarantee is not provided. This approach is followed by the Russian Ministry of Finance (Letter N 02-02-07/32132).

According to Part 5 of Art. 96 of Law No. 44-FZ, in the event of failure to provide security for the execution of the contract, the procurement participant is considered to have evaded concluding the contract. In this regard, if the requirement to ensure the fulfillment of warranty obligations is established in the procurement documentation, failure to provide such security is grounds for recognizing the procurement participant as having evaded concluding the contract.

The method of ensuring the execution of the contract is determined by the procurement participant with whom the contract is concluded (Part 3 of Article 96 of Law No. 44-FZ).

To fulfill the contract, the participant may:

deposit funds into the customer's account;
provide a bank guarantee.

Payment order for transfer of funds

The payment order for the transfer of funds as security for the contract is filled out according to the general rules (Chapter 5 of the Regulations on the rules for the transfer of funds, approved by the Bank of Russia on June 19, 2012 N 383-P, Appendix No. 1 to the Regulations of the Bank of Russia dated June 19, 2012 N 383- P). In this case, in the “Purpose of payment” column it is necessary to indicate “Contract performance security”, as well as reflect information about the purchase.

When providing security in this way, it is necessary to verify the receipt of funds in full to the account specified in the procurement documentation or draft contract.

Situation

Can a third party contribute funds as security for the performance of a contract on behalf of a participant?

There is an example where the court declared unlawful the actions of a customer who refused to accept security for the performance of a contract from a third party (Resolution of the Ninth Arbitration Court of Appeal dated January 14, 2016 No. 09AP-52950/2015 in case No. A40-126679/15). A similar position is found in the practice of antimonopoly authorities (Decision of the Komi OFAS Russia dated March 27, 2014 N 04-02/2548).

Therefore, in order to avoid controversial situations, the participant is recommended to personally transfer funds to the customer’s account as security for the execution of the contract.

Registration of a bank guarantee

The second way to ensure the execution of a contract is to issue a bank guarantee (Part 3 of Article 96 of Law No. 44-FZ).

To issue a bank guarantee you need:

1. Determine the bank that will act as a guarantor for the execution of the contract under a bank guarantee.

Such a bank must be included in the list of banks that meet the established requirements for accepting bank guarantees for tax purposes, which is maintained by the Ministry of Finance of Russia and posted on its official website (Part 1, Article 45 of Law No. 44-FZ, Article 74.1 of the Tax Code of the Russian Federation).

2. Clarify the conditions for issuing a bank guarantee and the list of documents required by a specific bank to issue a bank guarantee.

Based on the results of issuing a bank guarantee, the participant must:

1. Receive the following documents from the bank:

a copy of the bank guarantee agreement;
a bank guarantee in writing on paper or in the form of an electronic document;
extract from the register of bank guarantees.

2. Make sure that the issued guarantee meets the requirements established by Art. 45 of Law No. 44-FZ.

Situation

The customer included in the procurement documentation a requirement to ensure the fulfillment of warranty obligations under the contract. Does he have the right to recognize a procurement participant who did not provide such security as having evaded concluding a contract?

There are two approaches to this issue.

Approach 2: Yes, you have the right. Article 96 of Law No. 44-FZ, dedicated to ensuring the execution of a contract, does not provide for the division of obligations under a contract into basic and warranty. Consequently, the requirement to ensure the fulfillment of obligations specified in the procurement documentation and the draft contract may include, among other things, the obligation to provide warranty obligations. According to Part 5 of Art. 96 of Law No. 44-FZ, in the event of failure to provide security for the execution of the contract, the procurement participant is considered to have evaded concluding the contract. In this regard, if the requirement to ensure the fulfillment of warranty obligations is established in the procurement documentation, failure to provide such security is grounds for recognizing the procurement participant as having evaded concluding the contract.

The School of Electronic Trading provides professional retraining for suppliers and customers in accordance with 44-FZ and 223-FZ. Online, with experts.

Letter of the Ministry of Finance of the Russian Federation dated July 2, 2012 No. 02-11-04/2475 On the procedure for crediting to the budgets of the budget system of the Russian Federation the amounts contributed by the procurement participant as security for an application for participation in the auction, in cases provided for by the legislation of the Russian Federation on the placement of orders for supply of goods, performance of work, provision of services for state and municipal needs, as well as in the form of contract enforcement

The Department of Budget Policy and Methodology of the Ministry of Finance of the Russian Federation (hereinafter referred to as the Department) considered the application for the procedure for crediting to the budgets of the budget system of the Russian Federation the amounts contributed by the procurement participant as security for an application for participation in the auction, in cases provided for by the legislation of the Russian Federation on procurement for the supply of goods, performance of work, provision of services for state and municipal needs, as well as in the form of securing the execution of a contract, and reports.

1. Chapter 28 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), regulating the conclusion of a contract, in Articles 448, 449 provides for provisions on the deposit made by bidders, which may be lost by the person who wins the bid if he evades signing the contract. Articles 25, 29, 41.12 of the Federal Law of July 21, 2005 No. 94-FZ “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” (hereinafter referred to as Federal Law No. 94-FZ), in contrast to The provisions of the Civil Code do not consider securing an application for participation in tenders as a way to ensure the fulfillment of an obligation arising from a government contract.

In this regard, withholding and transferring to the customer the amount of security for an application for participation in bidding contributed by the procurement participant in cases provided for by Federal Law No. 94-FZ, in the opinion of the Department, is a sanction for non-compliance by the procurement participant with the requirements of the legislation of the Russian Federation on placing orders for supplies goods, performance of work, provision of services for state and municipal needs.

By virtue of the provisions of article subparagraph 6 of paragraph 1 of article 46 of the Budget Code of the Russian Federation (hereinafter referred to as the Budget Code), in order to take into account in the budget revenues of the budget system of the Russian Federation the proceeds from the sale of security for applications for participation in tenders submitted in accordance with Federal Law No. 94-FZ, Appendix 1 to the Instructions on the procedure for applying the budget classification of the Russian Federation, approved by Order of the Ministry of Finance of Russia dated December 21, 2011 No. 180n, provides for the corresponding subarticle of the budget income classification code of the budget classification of the Russian Federation “000 1 16 33000 00 0000 140 “Monetary penalties (fines) for violation of the legislation of the Russian Federation on placing orders for the supply of goods, performance of work, provision of services.”

2. Within the framework of a state contract, as well as any other type of contract, obligations arise between the parties by virtue of the provisions of Article 308 of the Civil Code.

The fulfillment of obligations is regulated by Chapter 22 of the Civil Code, and in the event of obligations arising from a state contract, also by the provisions of Articles 9, 22, 34, 41.6, 56.1, 64, 65 of Federal Law No. 94-FZ. At the same time, Federal Law No. 94-FZ does not contain special rules regulating the legal content of forms of securing the fulfillment of obligations, termination of security. In this regard, the provisions on the termination of security and the powers of the creditor in terms of the provided security after the fulfillment of the main obligation are established by Chapter 22 of the Civil Code.

Thus, issues related to ensuring the fulfillment of obligations under a contract, provided in the form of a pledge of funds, are regulated by the provisions of Article 334-356 of the Civil Code and the Law of the Russian Federation of May 29, 1992 No. 2872-1 “On Pledge”.

Based on the provisions of Article 348 of the Civil Code, foreclosure on the pledged property to satisfy the claims of the pledgee (creditor) may be applied in the event of failure to fulfill or improper performance by the debtor of the obligation secured by the pledge, while in accordance with the provisions of Article 339 of the Civil Code, the parties, taking into account the provisions of Article 349, have the right to establish in the agreement conditions on the procedure for the sale of pledged property by court decision and (or) on the possibility of foreclosure on the pledged property out of court. Article 5 of the Pledge Law establishes that the pledge can be deposited with a notary or bank; in addition, by virtue of Section III of the Pledge Law, the pledged property can be transferred to the pledgor.

In all of the above cases, foreclosure on the pledged property will be carried out in accordance with the provisions of the Civil Code and the Law on Pledge, applied to the extent not inconsistent with the Civil Code.

In addition, the funds that serve as collateral can be transferred to the budget if the collateral is not claimed after the expiration of the period specified by law from the date of fulfillment of the main obligation, unless otherwise established by the agreement.

Considering the above, in the event of foreclosure on the pledged property, the foreclosure, in the opinion of the Department, qualifies as a civil sanction, and amounts of funds are subject to transfer to budget revenue under the corresponding subarticle of the budget income classification code of the budget classification of the Russian Federation “1 16 90000 00 0000 140 “Other proceeds from monetary penalties (fines) and other amounts in compensation for damage.”

The return of the subject of pledge in accordance with the provisions of Article 352 of the Civil Code upon termination of the pledge due to the fulfillment of the obligation secured by the pledge is carried out by the pledgee immediately. The procedure for the return of funds received at the temporary disposal of a government institution is established by the budget legislation of the Russian Federation.

Document overview

The procedure for crediting to the budget amounts contributed by a procurement participant as security for an application for participation in a tender or execution of a contract has been clarified.

Withholding and transferring to the customer the amount of the application security should be considered as a sanction for non-compliance by the procurement participant with the requirements of the legislation on public procurement. Money is accounted for under KBK 000 1 16 33000 00 0000 140 "Monetary penalties (fines) for violation of the legislation of the Russian Federation on placing orders for the supply of goods, performance of work, provision of services."

Transferring contract security amounts to the budget qualifies as a civil sanction. They are reflected in BCC 1 16 90000 00 0000 140 “Other receipts from monetary penalties (fines) and other amounts for damages.”

Please note that upon fulfillment of the secured obligation, the security amount is immediately returned. The procedure for returning funds received at the temporary disposal of a government institution is established by budget legislation.

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BC contract enforcement 2018 has changed! You must indicate 00000000000000000510. When transferring funds, carefully check the 104th field of the payment order.

Let's figure out what security for the execution of a contract under 44 Federal Law is, what requirements customers make, what its size is and how it can be added.

Contract enforcement is a kind of assurance that the supplier will fulfill the terms of the concluded agreement in full.

It can be paid in the form of cash or in the form of a bank guarantee, and this must be done when concluding an agreement.

Do not confuse contract security under 44 Federal Laws and applications. Bid guarantee is the amount that the bidder deposits into the personal account, declaring his good faith and intention to take part in the procurement procedure.

Article 96 of the Law on the Contract System states that the amount of security for the execution of a contract under 44 Federal Laws ranges from 5 to 30% of the contract price. The final value is established by the customer independently in the notice, documentation, and draft agreement.

It must be borne in mind that if the initial price of the agreement is more than 50 million rubles, then the customer is obliged to establish a security requirement in the amount of 10 to 30% of the maximum price. In this case, this amount should not exceed the amount of the advance (if such is established).

If the advance is more than 30% of the initial contract price, then the amount of the guarantee is set equal to the advance.

Another important point: if the proposed contract price is reduced by more than 25%, the bidder provides a guarantee taking into account the requirements for anti-dumping measures.

There are several ways for the winning bidder to provide a guarantee. There are two types:

Bank guarantee (a type of independent guarantee issued by banks or other credit institutions);

Depositing funds into the account specified by the customer.

To the question of who determines the method of ensuring the execution of the contract, we answer that, in accordance with the provisions of Federal Law No. 44, the method is determined by the participant with whom the agreement is supposed to be concluded.

During the execution of the contract, the supplier, who has fulfilled part of the terms of the contract, has the right to provide a new guarantee under the contract, reduced in proportion to the size of the fulfilled obligations. At the same time, he may also change the method of providing the guarantee. It is important to keep in mind that the counterparty under the contract does not have the right to increase the amount of this guarantee.

The guarantee of the contract is not provided in the following cases:

The bidder is a state or municipal government agency;

The subject of the procurement procedure is credit provision services;

The subject of the auction is the issuance of a bank guarantee, with the customer being a budgetary institution, state or municipal unitary enterprise.

The provisions of Law No. 44 provide for the right of the customer to include the condition in question in the requirements. Such cases include, for example, carrying out a procurement procedure by requesting quotes, or when procurement participants are only small businesses, socially oriented non-profit organizations, and the draft contracts for these procurements do not provide for the payment of an advance, or when the draft agreement provides for banking accompaniment.

The Law on the Contract System of Russia provides for several types of security for state and municipal contracts. These include:

to participate;
securing the execution of the contract (cash or bank guarantee).

We will define the distinctive features of the above types of security, and also tell you how to correctly draw up a payment order, a sample for each type.

Payment document form

To transfer the amount of funds to a special account to secure the application, use a unified payment order, the form (you can download the word file by clicking on the button under the image) looks like this:

Securing an application for participation: new procedure

So, all organizations, entrepreneurs and private individuals applying for the role of executors of government contracts, until June 30, 2019, provide applications only in cash. From 01.07.2019, along with money, it will be possible to secure an application with a bank guarantee.

Previously, the collateral amount had to be credited to the trading account of the electronic trading platform within which purchases were made. However, officials adjusted the mechanism once again.

The innovations affected purchases carried out under 44-FZ, as well as under 223-FZ, regarding purchases from small businesses. For purchases carried out under 223-FZ (except for SMP), the old rules apply - money is transferred by payment order to the account of the trading platform.

Now, in order to take part in procurement, the applicant for the execution of the contract must visit a banking organization. When a special account is opened, the applicant for the execution of the contract credits funds in the required amount according to the payment order. It is permissible to use borrowed or credit capital.

Now we’ll tell you how to fill out a payment order (the same form is used) to send money to a special account.

We transfer money to a special account

To replenish a special account, you must issue an order to write off money from a regular current account and credit it to a special one. This order is a payment order.

It is not difficult to fill out such a payment form, since the payer and the recipient in this case are the same person. However, there are some peculiarities. So, what to pay special attention to:

Set the document number and date in chronological order.
Payer - standard details of the applicant, including his main or additional bank account.
Bank details. If accounts are opened in the same banking organization, then the details will be identical. For different banks, provide their individual details.
The recipient is the same applicant, his TIN, checkpoint and name. But the recipient’s account is the number of the special account opened for crediting the application security for participation.
In the payment purpose, indicate the essence of the operation, that is, replenishing a special account for the amount of the application security.

Example of a completed payment order

How to fill out a payment form to secure an application under 223-FZ

Please note that this algorithm is not applicable for procurement from SMEs under 223-FZ if the customer has not established benefits for SMEs.

We’ll tell you how to issue a payment order online using the example of ETS JSC.

Step 1. Set the payment order number and date in chronological order. We indicate the payment amount in words, then in numbers.

Step 2. Payer information block. It includes information about your organization: INN, KPP, full name, current account number, name of the bank in which the current account is opened, as well as its BIC.

Step 3. Block of information about the recipient. We indicate similar registration data of the trading platform. Then we register the type of operation “01” and the order of payment “5”.

Step 4. Specify the purpose of the payment and, if necessary, indicate the electronic auction number. Be sure to indicate “WITHOUT” or “VAT NOT SUBJECT”.

Download the completed document

Filling out a payment order in 2019 sample:

The winner must pay

The applicant for the execution of the contract, recognized as the winner, will face additional expenses. Thus, officials determined that a fee must be taken from the person with whom the state or municipal contract is concluded. The amount can be debited from the winner’s special account if there are enough funds to complete the operation.

And if there is not enough money, then the winner will be sent a corresponding request to deposit the fee into the bank account of the electronic platform. This obligation will have to be paid with the same payment order.

The amount of the fee is determined based on the initial price of the government contract - 1% of the NMCC, but not more than 5,000 rubles. However, relaxations are provided for small businesses, as well as for non-profit socially oriented organizations. Such entities pay 1%, but not more than 2000 rubles (RF Government Decree No. 564).

After paying the fee for winning the procurement, do not forget to obtain supporting closing documents. The trading platform operator will provide acts and invoices. Documentation can be obtained electronically if the contractor has activated the service for the use of legally significant document flow on the corresponding trading platform. If the service is not connected, then you can request paper acts and invoices; they should be obtained at the location of the trading platform operator.

Sample payment order for payment of a fee for winning purchases upon request

Enforcing the contract

Where else is a payment order used?

Let us remind you that all economic entities - legal entities and entrepreneurs - are required to make payments by payment orders. Examples of such calculations could be:

transfer of taxes and fees. contributions to the budget;
payment for supplies, services, goods, works;
transfer of advances and wages;
payment of disability benefits;
settlements under contracts;
other non-cash transactions.

The structure of the document provides for entering the relevant information into the payment fields. Let us remind you what fields the payment order contains.

Please note that the meaning of the payment fields is determined depending on the purpose of the payment. For example, to transfer taxes to the Federal Tax Service, you will have to fill out the “tax line” (fields 104-110), but when making settlements with a counterparty, these fields are not filled in.

Let us remind you that you can generate a payment order to the tax office for free at

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Payment order for transfer of funds

Situation

Registration of a bank guarantee

Situation

Document overview

Payment document form

Securing an application for participation: new procedure

We transfer money to a special account

Example of a completed payment order

How to fill out a payment form to secure an application under 223-FZ

Download the completed document

The winner must pay

Sample payment order for payment of a fee for winning purchases upon request

Enforcing the contract

Where else is a payment order used?

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