Federal Law No. 44 regulates relations aimed at ensuring municipal and state needs to increase the efficiency of procurement, adherence to transparency and publicity, and the prevention of corruption and other abuses. The normative act regulates activities related to the planning of transactions, the determination of contractors, suppliers, contractors, conclusion of contracts and the implementation of their conditions. Securing applications during the organization of auctions and tenders is regulated by Article 44 of the Federal Law-44. Comments on the norm can be found below.
Clarifications on amendments and additions to the norm
In the current (current for 2016) version of the law, article 44 contains the amendments made to it in 2013-2014. In 2015-2016 Additions to the considered norm were not included, and it was not subjected to adjustments. Article 44 44-FZ as amended from 2013-2014 It is relevant and is in amended form in the latest revision of July 3, 2016. Meanwhile, other provisions of the regulatory act contain additions introduced in 2015-2016.
Security Features
In the process of conducting auctions / tenders, article 44 of the Federal Law-44 requires the customer to establish a requirement for securing applications. The documentation must indicate its size and the conditions of the bank guarantee (if this method is applied in accordance with the regulatory act under consideration). Securing the application in a closed auction or in a tender may be provided by the participant making money or a bank guarantee. The method is chosen by the subject himself. Securing applications of participants in electronic auctions is provided solely by depositing funds. Bank guarantee must not contradict the requirements of Art. 45 Federal Law No. 44. Its validity is established for at least 2 months. from the end date of the application period. Requirements to ensure participation in the determination of the contractor, contractor, supplier equally apply to all procurement participants.
Important point
If the participant as part of the application submitted confirmation of the deposit of funds as security and before the day of consideration and verification of applications they did not arrive at the account indicated by the customer, which records financial transactions, he shall be deemed not to have presented a guarantee. This rule does not apply when organizing an electronic auction.
Return Security
Article 44 44-FZ establishes cases in which the funds provided by the participant as guarantees are transferred back to him, or the lock is removed from them (when conducting auctions on electronic platforms). The norm also defines the terms for the return of collateral. In accordance with Art. 44 FZ-44 "On the contract system in the field of procurement" the reverse transfer of funds or the removal of blockages are carried out:
- When signing the protocol for consideration and verification of applications, their second parts for participation in a closed / electronic auction. The return or termination of the blocking is carried out in relation to the funds of all participants, except the winner of the procedure for determining the contractor / supplier / contractor. The reverse transfer to him is carried out after signing the contract. This item was put into effect as amended on 01.01.2014.
- Cancel the definition of an artist, supplier, or contractor.
- Member rejection.
- Removal of the subject from the determination of the supplier, contractor or contractor or refusal to sign the contract with the winner in accordance with the provisions of part 9 and 10 of art. 44 44- "On the contract system".
- Withdrawal of the application before the deadline for submitting it, or receiving it after its completion.
Additionally, Federal Law No. 140 of June 4, 2014 introduced a clause indicating another reason for the return of funds. It is carried out upon receipt by the customer of a decision from the supervisory authority to refuse to agree to conclude a contract with a single contractor, contractor or supplier. Article 44 of the Federal Law-44 determines that funds must be transferred no later than five days. The blocking is removed within 1 business day. In case of removal of the participant from the determination of the supplier, contractor or contractor, as well as refusal to sign the contract with the winner, the bank guarantee is not returned, the penalty is not collected from it.
List specifics
Article 44 of the Federal Law-44 establishes that the funds that are deposited in the form of security for the application, when organizing and conducting the electronic auction are sent to the account of the site operator in a bank. The profit received last from the placement of finances is payable. Revenues from funds accepted as collateral during electronic trading are transferred from the moment of blocking to its withdrawal on the basis of an agreement signed by the operator with each participant during accreditation.
Bank Requirements
The considered normative act establishes that to account for the performance of operations related to ensuring participation in the electronic auction, l / s of participants are opened on the account of the site operator. Article 44 44-FZ, as amended by regulatory act No. 396, imposes requirements on the financial stability of banking organizations. They are established, inter alia, regarding the amount of capital, profitability, assets, liquidity, as well as ownership structure. The requirements apply to banks in which the site operator opens accounts to account for funds provided by participants as collateral. A list of such financial structures, rules for concluding and terms of service contracts are established by the government. The bank and the operator who opened accounts in it to account for money as collateral are jointly and severally liable for meeting the deadlines for returning money specified above.
Blocking Features
Considering Art. 44 FZ-44 as amended, it should be noted that the freezing of funds that have been contributed by the electronic auction participant to secure the application is terminated by the operator in the same cases as the refund of funds at a closed event. At the same time, uniform requirements for the functioning of electronic platforms must be observed. They are determined in accordance with part 4 of the 59th article of the federal executive institute of power.
Exceptions
In Art. 44 FZ-44 as amended 2013-2014 cases are identified in which the return of funds contributed by the participant as security is not made. These include:
- Refusal or evasion of the subject from the conclusion of the contract.
- Failure to provide security or providing it with violations of the conditions established by Article 44 of the Federal Law 44-FZ, before signing the contract.
- Revocation or change by the participant of the application in the definition of the contractor, supplier, contractor after the completion of the period allotted for its submission.
In the case of organizing and conducting an electronic auction, funds deposited in the form of security are transferred to the account indicated by the customer, which records transactions with the money received to it, or the amounts are paid under a bank guarantee in the event of the above circumstances.
Contribution
Article 44 44-FZ determines that the amount of security should be from 0.5 to 5% of the initial (maximum) value of the contract. If it is not more than 3 million rubles, then the contribution is 1% of the price. If the purchase is made in accordance with the provisions of Articles 28-30 of the considered normative act, and the participant is the enterprise or the institution of the penal correctional system (penitentiary system), a small business, an organization of disabled people or a socially oriented non-profit society, the amount of security should not exceed 2% of the maximum (initial ) the value of the contract.
44-FZ, article 44: comments on part 15
Benefits are provided to enterprises and institutions of the penal correction system acting as participants. They are determined by the 28th article of the law in question. In paragraph 2, in particular, the following is established. In determining the executors, contractors, suppliers, the customer must provide the enterprises / institutions of the penal correction system with advantages in relation to the proposed contract value of up to 15%. This is carried out according to the rules established by the government in accordance with the approved lists of works, goods and services. The exception is cases when transactions are concluded with a single contractor, supplier, performer. Information about this should be indicated by the customer in the notifications of procurement and documentation regarding services, works and products included in the relevant lists. If the enterprise / institution of the penal correction system is recognized as the winner, at his request, the contract can be concluded at the price proposed by him, taking into account the advantages. However, the price should not be higher than the maximum (initial) price given in the notice.
Request
Her receipt for participation in the auction is regarded as an instruction of the subject to the site operator to block operations on his l / s. Within an hour after receiving the application, a freezing of the account opened for the implementation of operations to ensure it should be made. The exception is the case provided for in paragraph 5 of paragraph 11 of the 66th article.
Return of application
It is carried out in the absence of a participant’s account open for operations related to collateral with the necessary amount in respect of which blocking has not been made. The application is returned by the site operator. He must do this within an hour of receipt. Within 1 day from the date of return of the application to the participant in the cases established by paragraphs 1-4 of paragraph 11 of the 66th article, the operator must stop blocking operations performed in accordance with part 18 of art. 44, in respect of funds pledged as security. When withdrawing an application for participation in an electronic auction according to the rules established by Part 14 of Art. 66 and h. 9 Article 69, the serving subject defrosts l / s. This procedure is also carried out within 1 day (working day) following the day of receipt of the notification.
Defrosting funds
Within 1 business day, which follows the date of receipt by the site operator of the protocol specified in paragraph 6 of the 67th article, the blocking of the account opened for operations related to securing the bid of the bidder not admitted to the auction is removed. A similar rule applies to a person who has not taken part in an event for reasons beyond his control. Defrosting is carried out during the day following the date of placing the minutes of the auction on the electronic site. The same deadline is set for unlocking the account opened for operations related to providing the participant who submitted the application, which was recognized as not meeting the requirements established in the organizational documentation. An exception is the case, which is determined by Article 44 of the Federal Law 44-FZ in part 27.