The conclusion of municipal and state contracts is extremely important for any commercial company. Such an event significantly enhances its image and competitiveness in the market. But in order to achieve the signing of such a contract, a firm, an enterprise must prove its professional and financial viability. In the article we will analyze in detail the security of the application: the size, goals, forms, conditions of this application for participation in the tender. As well as the provisions of federal laws governing this.
Legislative regulation
What determines the amount of security for applications for participation in ongoing public procurement in the territory of the Russian Federation? Here it is necessary to turn to two legislative acts:
- Federal Law "On the contract system in the field of procurement, goods, services and works to ensure municipal and state needs" No. 44 (2013).
- Federal Law "On Procurement of Goods, Services, Works by Individual Legal Entities" No. 223 (2011).
Security objectives
Let us first consider how the size of the security for the application and its other parameters are regulated in accordance with Federal Law No. 44. Applications for companies to participate in state competitions are accepted only if there is sufficient material support. Which in case of non-fulfillment / improper fulfillment of the terms of the contract is withheld in favor of the customer.
Forms of collateral
For example, to participate in electronic types of auctions can be accepted monetary security of the application or a bank guarantee. The validity period of such guarantees (presented here as material security) must be at least 2 months from the date of completion of the application for participation in the tender. For the same period, funds will be blocked in the settlement account of those participating in the tender.
If the company is the winner of a public procurement tender, it will need to provide financial security for the execution of a future contract with a state or municipal customer. In what form to provide collateral, the procurement participant chooses independently. But it is important to remember that the term of bank guarantees in this situation should exceed the period of execution of the concluded contract by at least 1 month.
We will analyze the size of the application security in more detail below. The tender participant must provide two types of financial evidence of their intentions: participation in this competition and execution of the contract.
Bank irrevocable guarantee
The amount of security for an electronic auction application is determined by Russian law. A bank guarantee here is one of the possible forms of collateral. This concept, in turn, is regulated by Art. 368 and Art. 370 of the Civil Code of the Russian Federation. Special requirements for a bank guarantee are set out in Art. 45 Federal Law No. 44. Additional requirements can be found in the Resolutions of the Russian Government and other by-laws.
I must say that at its discretion, neither the state nor the municipal customer is authorized to establish their own requirements regarding bank guarantees of performers. And also put forward their own grounds for the adoption of such bank guarantees. Here, the regulatory provisions are part 6 of Art. 45 Federal Law No. 44, as well as Part 4.20 of Art. 7.30 Administrative Code of the Russian Federation.
Register entry
A bank guarantee must be entered in the Register of the Ministry of Finance no later than 1 business day from the date of its issue. The Bank undertakes to notify the principal (auction participant) about the inclusion of a guarantee in this list in the course of another working day by providing him with an appropriate statement.
The validity of such a document under current law should be at least 2 months from the date of completion of filing applications. The Bank cannot refuse the obligations it has given under these guarantees under any circumstances. A bank guarantee is irrevocable in nature. The guarantor (bank) for it in any case is liable for the obligations of the principal.
Approval and denial of a bank guarantee
In most cases, a municipal or state customer accepts a guarantee issued by a bank included in the list of credit institutions that are vested with the right to issue bank guarantees to execute contracts and secure applications. This is regulated by part 1 and part 1.1 of Art. 45 Federal Law No. 44.
The current version of such a list is available on the official Internet portal of the Ministry of Finance. This is the section "Activities", subsection "Contract system", subgroup "List ..."
But the customer has the full right not to accept a bank guarantee. But only in cases determined by law. For example, if it does not comply with the terms of the competition acts or the provisions of the Federal Law No. 44.
In this case, the customer, within three working days from the date of receipt of the guarantee, must inform the bidder in writing or by e-mail, listing the reasons for the refusal.
Cash as collateral
In this article, we analyze the size of the security of the application for electronic auctions and related topics.
Since the beginning of July 2018, the principals of state and municipal competitions have the opportunity to deposit funds to ensure their participation in electronic bidding. Finances are transferred by them to special accounts. They can be opened only in banking organizations that meet the requirements specified in the Decree of the Government of the Russian Federation No. 748 (2018).
Settlement accounts are opened with credit institutions included in the list approved by Order of the Russian Government No. 1415-r (2018). The organizers of electronic auctions conclude cooperation agreements with the banks listed on this list. On the basis of these agreements, principals have the exclusive right to open a current account in a short time. For example, on the day you contact the bank.
Auction application security amount
We will thoroughly analyze the main issue of this material. This is the size of the security for the application under 44 (Federal Law No. 44).
No specific numbers are given here. The amount of collateral is set as a percentage of the maximum (initial) price of the contract. A brief designation of the latter is NMCC.
Therefore, the size of the security for an application under FZ-44 varies - depending on the type of supplier and the amount of the contract. In addition to the aforementioned Federal Law, it is regulated by Clause 1 of Decree of the Russian Government No. 439 (2018).
Percentages with NMCC
By the size of the security of the application for participation in the tender, one can say the following:
- If the NMCC varies between 5-20 million rubles, then the size of the guarantee from the bank is 0.5-1% of this amount.
- If the price of the contract goes beyond 20 million rubles, then the bank guarantee increases. This is already 0.5-5% of NMCC.
- In the event that the procurement participant is an enterprise or institution related to the penal system, the organization of persons with disabilities, preferential terms are introduced for the size of the security for the application during the auction. If the NMCC is here above 20 million rubles, then the value of the bank guarantee should not exceed 2% of this amount.
- Now there are special provisions regarding contracts for which the NSCC varies between 1-5 million rubles. From July 2018, the Ministry of Finance recognized that it is advisable to put for them the size of the application security in the competition according to the same rules as for contracts worth 5-20 million rubles. That is, a bank guarantee here should also not be less than 0.5-1% of this amount.
Such amounts of security for applications for participation in the competition today are considered sufficient for an objective assessment of the financial capabilities of principals.
Return Dates
The amounts that are transferred by companies and enterprises to ensure applications, for many of them are decent. Why the question of returning these funds excites principals.
If the participant has not won the competition, then the money will be returned back to his accounts no later than 5 working days from the completion of the state competition. If an electronic auction was held, then the return period is reduced to 1 business day from the fact of its completion.
For principals who won the competition, the deadlines for returning the money security for the application are the same. But the difference is that they need to be counted not from the moment the tender is completed, but from the date of signing the contract with the customer.
As for bank guarantees, they are not returned. However, it is impossible to recover from them.
Refusal to return
We have already decided how much the size of the application security for participation in contests, auctions held by municipal and state customers is. Principals should be aware that the law defines cases in which collateral may not be returned to them.
This is the following:
- The winner of the tender has expired the security of the contract. Or the case when this principal delays the signing of contracts with the customer.
- The winning company refused to sign a contract with the customer. This leads to retention in favor of the last security provided by the principal. In this case, the conclusion of the contract will be offered to the second winner. But this principal can already refuse to sign the contract without sanctions in the form of withholding its security.
- In the current quarter, this participant has already been rejected twice in the second installment of applications submitted at this site. This happens when the application for participation in the auction is declared not complying with the requirements established in its administrative, regulatory documentation. In particular, if in the second part there are documents that do not confirm the conformity of such a principal, the goods, services and works offered by him with the restrictions, conditions and prohibitions that are established by the customer in accordance with Art. 14 Federal Law No. 44.
- In the case when the application of the principal is rejected by the third municipal or state customer, the operator of the electronic auction, after 30 days from the last decision, must return to this participant a tender equal to the value of the marginal security of his application.
From this it becomes clear that when conducting state and municipal competitions, not only they themselves are responsible for the good faith of suppliers and distributors, but also the electronic platform at which the auction is held.
Action Federal Law No. 223
We examined the requirements for securing an application under the Federal Law No. 44. This applies to competitions held by municipal and state customers. As for the Federal Law No. 223, it applies to auctions where other persons act as customers:
- State-owned companies.
- State corporations.
- Various subjects of various kinds of natural monopolies.
- Organizations that carry out regulated types of activities in the field of gas, electricity, water, heat supply, sanitation, disposal, disposal of household solid waste, wastewater treatment.
- Unitary municipal and state institutions, as well as budget organizations that plan procurements through various subsidies and grants.
- Unitary state and municipal institutions, budget organizations that conduct procurement in order to attract subcontractors for those contracts in which they themselves are appointed performers.
- Autonomous companies.
- The mass of business companies (and their subsidiary business companies), in the authorized capital of which the share of the Russian Federation or a Russian entity, of a municipal organization in the total account exceeds 50%.
- Budget organizations in case of availability of the Procurement Regulation adopted and subsequently posted in the UIS.
Rights of customers under Federal Law No. 223
The aforementioned customers are authorized (but not required) to require bidders to secure contracts and agreements. The sizes and methods of ensuring such applications, if necessary, are indicated in the tender documents.
The bank that will provide the guarantee should be on the list of the 50 best credit organizations according to the Ministry of Finance of the Russian Federation. But in the Register of the Ministry of Finance, drawn up for contests regulated by Federal Law No. 44, such a bank may not even appear.
There is no strict dependence of the size of collateral on the amount of the contract. This value can be set directly by the customer.
To participate in municipal and state competitions (regulated by Federal Law No. 44), each principal must provide monetary security for his application or a bank guarantee. The latter may also be necessary in some cases to secure applications for participation in competitions regulated by Federal Law No. 223. But only if the customer requires it.
