Today, in society, there is often talk of a state contract, but the municipal contract is mentioned much less frequently. But the latter are much more in reality. Most people assume that the differences between these contracts converge only to the customer. Perhaps you also believe that the customer in accordance with the state contract is a state institution, and in accordance with the municipal one, it is a municipal one. Nevertheless, the distinctive features are not limited in such a banal way. That is why this article discusses state and municipal contracts, procurements that are relevant to them, as well as many other issues that should be addressed.
Municipal and state contracts
Federal law of the Russian Federation under number 94 provides for the regulation of relations regarding the placement of orders related to the supply of marketable products, the performance of work, and the provision of services for state and municipal needs. In addition, the law regulates the execution of state and municipal contracts; uniform procedure for placing orders; organization of transparency and publicity at the same time. Prevention of corruption and abuse in the field of placing orders is also provided for by the legislative act.
It is important to note that the needs inherent in municipalities, municipal customers in services, commodity products and works that are necessary to resolve issues of local importance are somehow provided at the expense of funds from sources of financing of extra-budgetary levels, as well as local budgets. As it turned out, a contract for state and municipal needs is not the same thing. So, the corresponding needs are endowed with the following differences:
- The needs of the state are provided for by expenditure obligations of Russia and expenditure obligations of the subjects of the country at the expense of funds from the budgets of the latter, as well as the federal budget. The provision of the needs for commercial products, work and services is made from sources of financing of extrabudgetary nature.
- The execution of the municipal contract is connected with the needs provided at the expense of the local budget funds directly for the expenditure needs of the municipal formations for marketable products, work and services, which are necessary to eliminate local issues and implement certain state powers that are transferred to local governments through all federal legislative acts and, in addition, the laws of the constituent entities of the Russian Federation.
As it turned out, the differences between state and municipal bodies are obvious.
Municipal customers
The conclusion of a municipal contract is carried out only after appropriate notification from the customer. Municipal customers - state authorities of constituent entities of the Russian Federation and state local authorities, as well as authorized by the above structures to place orders. As a rule, authorized bodies, which include federal executive bodies, executive bodies of constituent entities of the Russian Federation and local authorities, implement their own functions related to placing orders for municipal customers.
The exception in this case is the conclusion of a municipal contract for the supply of marketable products, the performance of work, as well as the provision of services for municipal needs. In this case, the contract, one way or another, is approved by the signature of the municipal customer. It is important to note that the interaction procedure between the state authorized body and municipal customers is organized in the decision-making process regarding the formation of this authorized body.
It is necessary to pay attention to the fact that the peculiarities of placing orders for the supply of material nature values to the state reserve or the state defense order can be established through other federal laws.
Legislative framework
Through paragraph two of Article 72 of the Russian Budget Code, municipalities are required to fill out a sample municipal contract strictly within the limits of budgetary obligations. So, the above norm guarantees the availability in the local (municipal) budget of the funds that are necessary to pay for commodity products, work or services in accordance with the municipal contract.
On the basis of this norm, in the case of a municipal contract, you can keep absolute confidence that local government will not fail to pay for their own order. However, this alignment is only relevant in theory. In practice, the terms of a municipal contract may be somewhat delayed. So, often there are “delays” in terms of paying for the municipal order due to untimely replenishment of the state local budget.
That is why, before contacting one or another customer, it is necessary to study the municipal legislative act, which provides for the implementation of the municipal order. It is important to note that this legal act must be approved in absolutely any municipal formation. In addition, it is required to be published for public viewing.
Placing orders
The execution of an order characterizing a municipal contract, as a rule, provides for significant volumes of work, supplies of marketable products, and services. These conditions, one way or another, imply a serious income to the contractor of the municipal contract.
It is important to note that the state bodies of local self-government, referred to as customers, in the process of placing the type of orders in question must implement the following operations related to the determination of suppliers, contractors, contractors:
- Maintaining registers of municipal contracts (a model of the municipal contract is considered theoretically below), which are concluded based on the results of placing orders.
- Maintaining registers of unscrupulous suppliers.
- Free (due to execution by an interested party application) submission of tender documents, starting from the moment of publication in the official media. In addition, it is advisable to include in this paragraph the placement on the corresponding resource of a notice regarding the holding of a tender, an open auction, and so on.
Municipal customers
It is logical that the contract characterizing the municipal contract is drawn up with the participation of two parties (the customer and the contractor, which is also called the supplier). So, the following structures can act as municipal customers:
- State bodies of local self-government. This must include the local administration, representative body, and so on.
- Institutions of a municipal nature.
- Municipal contract for the supply of marketable products, works, services can also be executed by other organizations that are vested with the right to receive funds from the local budget.
- By means of the relevant legislative act, it is also provided for the possibility of forming a body that is authorized to carry out functions related to placing orders for these municipal customers. As a rule, the role of the body under review is played by the local administration.
In accordance with Federal Law No. 44, a municipal contract is drawn up with the participation of both parties. In addition, the legislative act provides that the municipal customer has the right to attract a specialized organization for the implementation of the following measures:
- Preparation of tender documents.
- Publication and placement of a notice regarding an open auction or tender.
- Sending invitations related to participation in a closed auction or tender.
- Other functions related to bidding.
Contract Placement Methods
Today, a municipal contract for services, marketable products or work, as a rule, is placed in accordance with two main methods:
- Bidding through an auction or tender. It is also necessary to include the auction in electronic form.
- Exclusion of bidding. Using the method of ordering from a single contractor (supplier, contractor), requesting quotes or ordering on commodity exchanges.
It is important to know that, as a rule, the winner of the tender is the one who offers the best security for the municipal contract. In this case, the current commission must assign the first number at the end of the competition to the relevant application.
Municipal contract terms
To date, the following conditions are assumed by the municipal contract:
- Free application for participation in the competition. It is important to note that the customer has the right to demand that the contractor deposit money for the application in an amount not exceeding 5% of the maximum (initial) contract price, often referred to as the lot price. This requirement applies to absolutely all participants, and is also indicated in the tender documents. Then, when the contractor does not have the necessary amount of money to secure the application, he can use such a mechanism as tender lending.
- The tender commission or the customer is not entitled to enter into negotiations directly with bidders. In case of violation of this requirement, the tender may be declared invalid in accordance with the claim of the interested person.
- Not less than thirty days before the opening of envelopes with current applications or opening access to electronic documentation, a specialized structure or individual customer must publish a notice about the municipal competition in the official media of the municipal formation. In addition, they are required to place this notice on their own official resource.
- The bidder is entitled to change his application or its withdrawal at any time immediately before the tender commission opens the envelopes with applications for participation or opens access to applications that were submitted in the form of electronic documentation.
- The winner of the competition agrees to conclude a municipal contract with the customer. If he refuses this, the customer is vested with the right to coerce him in court to carry out the above measure. By the way, in the case of the appropriateness of such circumstances, the customer must compensate for all losses that were caused due to the avoidance of the winner of the tender from concluding the contract.
Municipal contract and its conclusion
As it turned out, the winner of the competition agrees to conclude a contract with the customer. Nevertheless, today there are cases in which the conclusion of a civil law contract is still allowed.
What, in practical terms, is a municipal contract? This term should be understood as nothing more than an agreement between the customer on behalf of the municipal formation and the contractor, which is concluded in order to ensure the needs of the municipal nature. As a rule, the instrument here is a civil law contract (supply, sale, paid services, a contract, and so on), which consists in the procedure regulated by Russian civil law. However, in this case, there are a number of nuances. So, it is impossible to conclude a municipal contract with the relevance of the following circumstances:
- Recognition of the contractor bankrupt in accordance with the conclusion of the arbitration (commercial) court.
- Suspension by the judicial authorities of the contractor's activities in the manner prescribed by Russian law.
- Providing knowingly false information in the application for participation in the competition.
- Staying of the property of the executor under arrest imposed by the decision of the judicial authorities when, at the end of the period for concluding the municipal contract, the book value of the arrested property complexes exceeds 25% of the book value of the assets of the executor in accordance with the accounting (financial) statements for the last reporting period, which is considered completed .
- The appropriateness of the debt from the contractor (participant in the placement of the order) for tax or other mandatory payments for the past calendar year to state budgets of different levels. It is important to note that in this case the amount of debt should exceed 5% of the carrying amount of the contractor’s assets in accordance with the information in the financial statements for the last reporting period. The only condition here is the exclusion of an appeal against the existence of this debt.
Benefits of the municipal contract
At first glance, it might seem that the procedure for participating in the execution of an order, tender, auction is quite complicated and cumbersome. However, it is necessary to recall an effective Russian proverb: “Eyes are afraid, but hands do!”. As practice shows, everything is much simpler than you might imagine. The only condition is the implementation of actions within the law and in accordance with the requirements of the customer. So, today the following advantages are known that are acquired by a company that has become an order winner and has entered into a contract:
- Guaranteed cash reward for excellent results of their own activities.
- The growth of competitiveness and demand for marketable products, work and services of the company, and hence the possibility of their successful implementation.
- Guaranteed additional advertising regarding the activities of the structure.
- Establishing partnerships with local authorities in the implementation of the conditions for the proper execution of the contract.
- The opportunity to receive company recommendations from local authorities in the direction of its partners.
- Growth in the company's reputation both locally and regionally.
Additional nuances
It is important to note that the winner of the auction or competition agrees to conclude a contract with the customer in accordance with the minimum price that he himself proposed during the auction. This price is mandatory recorded in the protocol and included in the draft municipal contract, transferred directly to the winner of the auction. It must be added that it is possible to reduce the price in relation to the municipal contract, but only after its approval by affixing signatures.
In practical terms, customers of the relevant organizations often ask to insure the contract. This concept is a little outdated, however, it is necessary to carefully monitor changes and innovations in the legislation.So, for example, Business Insurance LLC is ready to offer the following services to participants in the auction or tender:
- Provision of a tender loan in order to secure auction bids.
- Providing a bank guarantee in accordance with a simplified scheme (without guarantors and collateral, at a minimum interest rate).
- Provision of a guarantee agreement subject to minimum tariffs.
Successful executing companies, as a rule, have finished products, carry out work and provide services for organizations and enterprises of any level. They provide professional support, as well as qualitatively solve all the problems of securing contracts and tenders. In addition, worthy performers provide good conditions for obtaining a bank guarantee and a guarantee agreement, which usually serves as a reliable tool for ensuring electronic trading. At the same time, tenders can be very diverse (for construction, for supply, for repair, and so on).