Provision of a contract for 44-FZ: conditions

Those who on an ongoing basis deal with the provision of municipal or state needs through the purchase of goods, services or works, have to base their activities on a specific part of the law, namely, 44 FZ. This part of the federal legislation is devoted to the conditions and principles of the performance of the contract.

The essence of the law

If you carefully study the law in force, you will be able to find out several current criteria, according to which the process is regulated, such as securing the contract.

The first requirement that needs to be met is the bank guarantee. You can obtain it from a financial institution that is part of the list of banks that have the appropriate authority. Exceptions are possible, but it makes sense to think only in the case of cooperation with the state defense order.

Also it is necessary to understand what the guarantee is. Provision of a contract without its provision is unlikely. In fact, we are talking about An agreement that is recorded in writing and contains clearly stated obligations of the financial institution: if the principal does not fulfill the terms of the contract, then the beneficiary receives cash.

It is in this way that the bank ensures the performance of a contract related to the provision of a particular product or service. At the same time, one must understand that the code deals with securing the contract, the customers will give preference only to those institutions that are included in the register of the Ministry of Finance.

Basis for guarantee under 44 FL

The second part of Art. 45 FZ-44 contains information that the guarantee, as such, can not be withdrawn. And it should rely on the following processes and papers:

- Validity period. The agreement must be valid for the duration of the contract until the contract provided by the bank remains relevant.

- A set of documents provided by the beneficiary. In this case, we are talking about those papers that the party should prepare, counting on financial compensation from the bank (guarantee amount). Without these documents, the requirements will not be justified.

- Obligations of the parties. Provision of a contract can be realized provided that the parties have previously recorded all requirements in writing.

- Delay conditions. When a bank guarantee is provided as collateral for the performance of a contract , in most cases an agreement is signed regarding the responsibility of the principal.

- Document amount. It is about fixing the exact amount of the guarantee that the beneficiary can expect if the supplier does not fulfill its obligations under the contract.

Features of FZ-223

Considering the bank security of the contract, it is necessary to take into account and This part of the legislation. This normative act is different in that it allows you to independently establish the rules and conditions of the contract to its participants, taking as a basis the Procurement Regulations. It is for this reason that some customers choose 223-FZ as the basis, although there are no clear requirements for the execution of the contract.

In this case, the contract is secured at the expense of funds that are transferred to the account of the beneficiary. Thus, the customer has the opportunity to choose between the above-described normative act, which allows to determine the conditions on its own, and FZ-44, which clearly regulates the boundaries of the contract.

By the way, there are certain conditions that can not be included in the bank guarantee. It is a question of granting by the customer of the guarantor of judicial certificates confirming the absence of fulfillment of obligations by the principal, as a condition of payment of the security amount.

How to make out a guarantee agreement

It is logical that the security of the contract must be documented. At the same time, at the moment there is no concrete form, according to which it is possible to compile such a document. But there are certain orders, in them and it is written out what exactly it is necessary to indicate in the forms.

If you want to get an idea of how the sample of the bank guarantee looks, it makes sense to visit the site of public procurement, where this information is freely available.

Those who do not know where exactly to search for a sample on the mentioned resource, you need to go to the section "Registers", then choose the "Register of bank guarantees". In the center of the screen a window will pop up, in which you must click on the "Documents" link. As a result, access to information concerning bank guarantees will be opened. Here you need to find a button offering to show detailed information and press it. The result is a scanned copy of the agreement.

This sample can be downloaded, and on its basis to issue the necessary documentation.

What are the requirements for banks

As it was written above, budget institutions will be able to accept guarantees to secure a contract only from those financial structures that will meet certain requirements described in the Tax Code of the Russian Federation. These requirements are as follows:

- Banking activities should be carried out for more than 5 years;

- there should be no requirements of the CBR regarding financial recovery measures;

- availability of a license to conduct banking activities ;

- if the bank intends to provide such a service as securing a contract, it must have its own capital, the amount of which will be equal to 1 billion rubles or more;

- Another requirement is that the bank complies with the mandatory standards, which are stipulated by the 86-FZ, and the compliance with this requirement will be assessed over the past two quarters.

If you want, you can see the list of banks that meet the requirements described. This information is on the website of the Ministry of Finance of Russia.

Accounting

Having ascertained what requirements the contracting bank should take into account the bank that provides the guarantee, as well as the party related to procurement, it is necessary to understand the accounting question.

So, when the purchase participant transfers funds to the customer's account, they are defined as confirmation of the contract. At the same time, as soon as the contract itself is signed, the customer will return the transferred money back, which assumes only temporary possession of the supplier's funds.

In connection with this, within the accounting framework, the amount received from the participant should be displayed in the 19-23th digit of account numbers and at the same time use code 3. Thus, the funds of the auction participant will be determined as being in temporary possession.

As for the specific account that is relevant for these operations, you need to choose the number 304 01. It is intended for the calculation of funds, the disposal of which has a temporary nature. This type of accounting must be maintained in the journal of non-cash transactions.

Deposit of funds

In the framework of the topic "ensuring the price of the contract", it makes sense to pay attention to the fact how exactly money is being introduced to confirm the fact that the terms of the contract will be fulfilled.

Initially, it is necessary to determine the following conditions for the selection of the financial structure by the customer: before applying for an auction or tender, he must deposit money in the required amount.

As an alternative way to participate in the auction, you can choose to provide a bank guarantee. If you pay attention to clause 6 of Article 44 of the Federal Law, then it will not be difficult to find a demand for the return of funds that fulfill the role of securing the application of the procurement participant, after the final selection based on the results of the competition.

To return this sum it is necessary in time, not exceeding 5 working days. If it is an electronic auction, then this procedure takes one day.

What guarantees of contract enforcement can look like

There are several types of performance of the contract, which provides for the current legislation. So, here are a few actual ways by which the contract can be secured:

- A bank guarantee that meets the requirements set forth in Art. 45 of the Law on the contract system. This means that the bank offering the issuance of a guarantee must be on the list of the Ministry of Finance. Also, the guarantee service can only have an irrevocable form.

- The money deposit. In this case, we are talking about the amount that is transferred to the account of the customer and the amount of security at the same time is within 5-30% of the maximum (initial) price of the lot or contract.

It is important to know one more feature of the process: if the initial value of the contract is higher than 50 million rubles, then enforcement of the latter can not fall below the 30% mark. It is possible that the contract will include an advance payment, in which case the security amount should not be less than this payment.

Terms of provision and return of collateral

Here everything is very simple: the guarantee should be provided within the term that was determined in the process of drawing up the contract. From this follows the obvious conclusion: if the party offering the service or the goods is not able to provide security for the performance of the contract at certain earlier dates, it will be deemed to have evaded the conclusion of the contract.

As for the bank guarantee, there is one nuance here - its duration necessarily exceeds the validity of the official agreement of the parties for one month or more.

Conditions for securing the contract Include a clear definition of the timing of this procedure, including the return of the guarantee amount. If you look at the law, you can find that it does not contain strict requirements on this matter. As a consequence, many customers themselves determine the amount of time during which they will have to make a refund of funds blocked to secure the contract. At the same time, this period must necessarily be reflected in the contract.

When the guarantee can be refused

In addition to the return of guarantee funds, there is still the possibility of initially refusing such a service as securing a contract. FZ does not prohibit such a decision, but it is not always clear under what conditions this makes sense.

So, there are several reasons for this decision:

- The bank guarantee does not correspond to those conditions that imply the enforcement of the contract;

- there is no information in the register on the bank that offers warranty services;

- the discrepancy between the guarantee offered by the bank, the requirements contained in the documents related to procurement, the invitation to participate in the process of determining the supplier, as well as notification of the implementation of cooperation.

If the customer does not consider the security of the contract as an appropriate measure, he must notify the bank of his refusal in writing within three working days.

What you should know about anti-dumping measures

To regulate such issues, there is a law "On the contract system." And if you pay attention to article 37 of this law, you can find out that anti-dumping measures begin to operate from the moment when the maximum contract prices fall by more than 25%. We are talking about the process of choosing a suitable financial structure for the customer, which takes place in the format of a contest or auction.

The essence of the measures is the following: the contract guarantee, which is ready to provide the supplier, determined in the competitive selection process, is increased by 1.5 times in comparison with those figures that were provided initially. In other words, if the amount of collateral equal to 10% of the initial maximum contract price is fixed in the auction documents, then with the above reduction of more than 25%, the guarantee amount will be increased to 15%. That is, for dumping all the same have to pay, which makes the latter not entirely profitable strategy.

An exception

There is a certain type of bank guarantees, which are not included in the register. This rule falls under the security of applications, which is made at closed events created to determine the supplier, contractor or contractor. In fact, it is about organizing procurement related to state secrets. This includes the provision of a contract containing information that can not be divulged.

It is in such circumstances that the lack of information in the registry about the guarantee provided by a particular bank is not a valid reason for refusal.

Results

Ensuring that the contract will be implemented is more than a relevant measure, as it makes cooperation reliable and stable. At the moment, the legislation quite accurately regulates this process and it gives an opportunity to customers (budget organizations), to continue active cooperation with suppliers, reducing risks to a minimum.