Those who are constantly dealing withprovision of municipal or state needs through the procurement of goods, services or works, it is necessary to base its 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 contract execution.
The essence of the law
If you carefully examine the current law, you can find out several relevant criteria by which a process such as contract security is regulated.
The first requirement that must be met -This is a bank guarantee. You can get it at a financial institution, which is part of the list of banks that have the appropriate authority. There may be exceptions, but it makes sense to think about them only in the case of cooperation with the state defense order.
It is also worth figuring out what the warranty is. Providing a contract without its provision is unlikely. Actually it is about agreement that is fixed in writingand contains clearly defined obligations of the financial organization: if the principal does not fulfill the conditions of the contract, the beneficiary receives funds.
This is how the bank providesfulfillment of a contract relating to the provision of a particular product or service. At the same time, it is necessary to understand that the code of the case concerns the security of the contract, customers will prefer only those institutions that are included in the register of the Ministry of Finance.
Basis for warranty under 44 FZ
The second part of Art. 45 FZ-44 contains information that the guarantee, as such, cannot be revoked. And it should be based on the following processes and papers:
- Validity. The agreement must be valid for as long as the contract that the bank provides remains relevant.
- A set of documents provided by the beneficiary. В этом случае речь идет о тех бумагах, которые must be prepared by the party that is counting on financial compensation from the bank (guarantee amount). Without these documents, the requirements will not be justified.
- Obligations of the parties. The provision of a contract may be implemented provided that the parties have previously recorded all requirements in writing.
- Suspensive conditions. When a bank guarantee is provided as a security for the execution of a contract, in most cases an agreement is signed concerning the responsibility of the principal.
- The amount of the document. It is about fixing the exact amount of the guarantee, which the beneficiary can count on, if the supplier does not fulfill its obligations under the contract.
Features FZ-223
Considering the banking provision of the contract, you need to consider and this piece of legislation.This regulation is different in that it allows you to independently set the terms and conditions of the contract to its participants, taking as the basis of the Procurement Regulations. It is for this reason that some customers choose 223-FZ as the basis, although it does not contain clear requirements for the execution of the contract.
In this case, the contract is securedat the expense of funds that are transferred to the account of the beneficiary. Thus, the customer has the opportunity to choose between the normative act described above, which allows determining the conditions independently, and FZ-44, which clearly regulates the edges of the contract.
By the way, there are certain conditions that are notmay be included in the bank guarantee. It is about the provision by the customer to the guarantor of judicial acts confirming the absence of fulfillment of obligations by the principal, as a condition for the payment of the security amount.
How to make a warranty agreement
Logically, contract security should havedocumentary mapping. At the same time at the moment there is no specific form, according to which you can make such a document. But there are certain orders, it is written in them what exactly should be indicated in the forms.
Those wishing to get an idea of how the sample bank guarantee looks like, it makes sense to visit the public procurement website, where this information is freely available.
Those who do not know exactly where to look for a sample onmentioned resource, you need to go to the section "Registries", and then opt for the item "Register of bank guarantees." A window will pop up in the center of the screen where you need to click on the “Documents” link. As a result, access to information relating to bank guarantees. Here you need to find a button offering to show detailed information and click 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 institutionsthey will be able to accept guarantees for securing 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 should be carried out for more than 5 years;
- there should be no requirements of the Central Bank of the Russian Federation regarding the measures of financial recovery;
- the presence of a license to conduct banking activities;
- if the bank intends to provide such a service as contract security, it needs to have its own capital, the amount of which will be equal to 1 billion rubles or more;
- one more requirement is that the bank complies with the mandatory standards provided for by 86-ФЗ, and compliance with this requirement over the past two quarters will be assessed.
If you wish, you can familiarize yourself with the list of banks that meet the described requirements. This information is on the website of the Ministry of Finance of Russia.
Accounting
Having figured out what requirements for securing a contract should be taken into account by the bank providing the guarantee, as well as the party involved in procurement, you need to deal with the question of accounting.
So, when a procurement participant transfers fundsto the customer’s account, they are defined as confirmation of the security of the contract. At the same time, as soon as the contract itself is signed, the customer will return the money back, which implies only temporary possession of the supplier’s funds.
In this regard, in the framework of accountingThe amount received from the participant must be displayed in the 19-23 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 order.
As for the specific account relevant todata operations, then you need to choose the number 304 01. It is designed for the calculation of funds, the disposal of which is of a temporary nature. This type of accounting must be maintained in the journal of non-cash transactions.
Cash deposit
Under the theme “securing the price of a contract”, it makes sense to pay attention to the fact of how exactly the money is deposited to confirm the fact that the terms of the contract will be fulfilled.
Initially, it is necessary to determine the following conditions for the choice of the financial structure by the customer: before applying for an auction or competition, he must deposit funds in the required amount.
As an alternative way of allowingto participate in the auction, you can choose to provide a bank guarantee. If you pay attention to paragraph 6 of Article 44 of the Federal Law, it will be easy to find the requirement to return the money, which plays the role of securing the bid participant's application, after the final selection based on the results of the tender.
It is necessary to return this amount in a period not exceeding 5 working days. If we are talking about an electronic auction, then one day is given for this procedure.
What a guarantee of enforcement of a contract might look like
There are several types of execution of the contract, which provides for the current legislation. So, here are some topical ways in which contract execution can be ensured:
- 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 warranty service can only have an irrevocable form.
- Cash deposit. In this case we are talking about the amount that is transferred to the customer’s account and the amount of the security is within 5-30% of the maximum (initial) price of the lot or contract.
It is important to know another feature of the process:if the initial contract value is above 50 million rubles, then the enforcement of the latter cannot fall below the 30% mark. It is possible that the contract will include an advance payment, in this case the amount of the security should not be less than this payment.
Deadlines for the provision and return of collateral
Everything is very simple here:the guarantee must be provided within the time frame that was determined during the drafting process. An obvious conclusion follows from this: if the party offering the service or product is not able to provide security for the execution of the contract within the timeframes previously determined, it will be considered 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 formal agreement of the parties for one month or more.
Terms of contract включают четкое определение сроков данной procedures, including the return of the guarantee amount. If you refer to the legislation, you can find that it does not contain strict requirements to this effect. As a result, many customers themselves determine the period of time during which they will be required to make a refund of funds blocked to secure the contract. At the same time, this period is mandatory to be displayed in the contract.
When the warranty can be waived
In addition to the return of guarantee funds, there are stillthe possibility of initially rejecting such a service as contract security. The Federal Law does not prohibit such a decision, but it is not always clear under what conditions it makes sense to do so.
So, there are several reasons for this decision:
- the bank guarantee does not comply with the conditions that implies ensuring the fulfillment of the contract;
- there is no information in the registry about the bank that offers warranty services;
- discrepancy of the guarantee offered by the bank,the requirements contained in the procurement documents, invitations to participate in the supplier determination process, as well as the notice of cooperation.
If the customer does not consider the provision of a contract as a necessary measure, he must notify the bank of his refusal in writing within three working days.
What you should know about anti-dumping measures
There is a law to regulate such issues."On the contract system." And if you pay attention to Article 37 of this law, you can find out that anti-dumping measures take effect from the moment when the maximum contract prices are reduced by more than 25%. It is about the process of selection by the customer of a suitable financial structure, which takes place in the format of a competition or auction.
The essence of the measures themselves is as follows:the provision of the contract, which the supplier is prepared to provide, determined during the competitive selection process, is increased by 1.5 times compared with the figures that were provided initially. In other words, if in the auction documents there is fixed the amount of security equal to 10% of the initial maximum contract price, then with the above reduction of more than 25%, the guarantee amount will be increased to 15%. That is, you still have to pay for dumping, which makes the latter not an entirely profitable strategy.
An exception
There are certain types of bank guarantees,which are not included in the registry. This rule falls under the security of applications, which is made at closed events created to determine the supplier, performer or contractor. In fact, we are talking about the organization of procurement related to state secrets. This may include the provision of a contract containing information that can not be disclosed.
It is under such circumstances that the lack of information in the registry about the guarantees provided by a particular bank is not a good reason for refusal.
Outcomes
Ensuring that the contract willCompleted, is more than relevant measure, because it makes cooperation reliable and stable. At the moment, the legislation quite clearly regulates this process and this allows customers (state organizations) to continue active cooperation with suppliers, minimizing risks.
