Those who are constantly dealing with the provision of municipal or state needs through the purchase of goods, services or work have to base their activities on a specific part of the law, namely 44 Federal Laws. This part of the federal law is devoted to the conditions and principles of contract execution.
The essence of the law
If you carefully study the current law, you will be able to find out several relevant criteria according to which such a process as securing a contract is regulated.
The first requirement that must be fulfilled is the execution of 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 case of cooperation with the state defense order.
It is also worthwhile to understand what a guarantee is. Securing a contract without giving it is unlikely. This is actually about agreement, which is recorded in writing and contains clearly stated obligations of the financial institution: if the principal does not fulfill the conditions of the contract, the beneficiary receives money.
It is in this way that the bank ensures the fulfillment of the contract related to the provision of a particular product or service. At the same time, it must be understood that the code deals with securing the contract, customers will give preference only to those institutions that are included in the registry of the Ministry of Finance.
The basis for the guarantee under 44 Federal Law
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 as long as the contract that the bank provides remains valid.
- A set of documents provided by the beneficiary. In this case, we are talking about those securities that should be prepared by the party, counting on financial compensation from the bank (guarantee amount). Without these documents the requirements will not be substantiated.
- Obligations of the parties. The provision of the contract can be implemented provided that the parties have previously fixed all the requirements in writing.
- Suspending conditions. When a bank guarantee is provided as a guarantee for the performance of a contract, in most cases an agreement is signed regarding the principal’s liability.
- The amount of the document. It is about fixing the exact amount of the guarantee that the beneficiary can count on if the supplier does not fulfill its obligations under the contract.
Features of FZ-223
Considering the bank security of the contract, you need to consider and this part of the law. This normative act differs in that it allows you to independently establish the terms and conditions of the contract to its participants, taking as a basis the Procurement Regulation. For this reason, some customers choose 223- as the basis, although it does not spell out 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 beneficiary's account. Thus, the customer has the opportunity to choose between the normative act described above, which allows to determine the conditions independently, and FZ-44, which clearly regulates the facets of the contract.
By the way, there are certain conditions that cannot be included in a bank guarantee. We are talking about the provision by the customer of the guarantor of judicial acts confirming the lack of fulfillment of obligations by the principal, as a condition for the payment of the amount of security.
How to draw up a warranty agreement
It is logical that the contract should be documented. However, at the moment there is no specific form according to which such a document can be drawn up. But there are certain orders, they spelled out what exactly needs to be indicated in the forms.
If you want to get an idea of ​​what a sample of a bank guarantee looks like, it makes sense to visit the government procurement website, on which this information is freely available.
Those who do not know where exactly to look for a sample on the mentioned resource need to go to the “Registers” section, and then select the “Bank guarantees list” item. A window will pop up in the center of the screen, in which you need to click on the "Documents" link. As a result, access to information regarding bank guarantees will open. Here you need to find a button offering to show detailed information and press it. As a result, a scanned copy of the agreement will be displayed.
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, budgetary institutions will be able to accept guarantees for securing a contract only from those financial institutions 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 Central Bank of the Russian Federation regarding financial recovery measures;
- the presence of a license to conduct banking activities;
- if the bank intends to provide a service such as securing a contract, it needs to have its own capital, the amount of which will be equal to 1 billion rubles or more;
- Another requirement is compliance by the bank with the mandatory standards stipulated by 86-FZ, and compliance with this requirement will be assessed over the past two quarters.
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 found out what requirements for securing the contract should be taken into account by the bank providing the guarantee, as well as the party involved in the procurement, it is necessary to deal with the issue of accounting.
So, when the procurement participant transfers funds to the customer’s account, they are determined as confirmation of the security of the contract. Moreover, as soon as the contract is signed, the customer will return the transferred money back, which involves only temporary ownership of the supplier’s funds.
In this regard, in the framework of accounting, the amount received from the participant must be displayed in the 19-23 category 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 relevant for these operations, you need to select the number 304 01. It is designed specifically for the calculation of funds whose disposal is temporary. This type of accounting must be kept in the journal of cashless transactions.
Cash deposit
Within the framework of the topic “securing the price of the contract”, it makes sense to pay attention to the fact how exactly money is deposited to confirm the fact that the conditions of the contract will be fulfilled.
Initially, it is necessary to determine the following conditions for choosing a financial structure by a customer: before submitting an application for an auction or tender, he must deposit the necessary funds.
As an alternative way to 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 not be difficult to find a requirement for the return of funds that fulfill the role of securing the bidder’s bid after the final selection based on the results of the tender.
You need to return this amount in a period not exceeding 5 working days. If we are talking about an electronic auction, then one day is allotted for this procedure.
What contract enforcement guarantees might look like
There are several types of contract execution that are provided by applicable law. So, here are a few relevant ways in which the execution of a contract can be ensured:
- Bank guarantee, which 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.
- Cash deposit. In this case, we are talking about the amount that is transferred to the customer’s account and the amount of security is in the range of 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 cost of the contract is above 50 million rubles, then ensuring the execution of the latter cannot fall below 30%. It is possible that the contract will include an advance payment, in which case the amount of security should not be less than this payment.
Terms for the provision and return of collateral
Everything is very simple here: the guarantee should be provided within the period that was determined in the process of drawing up the contract. The 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 previously defined time frame, then it will be considered to have evaded the conclusion of the contract.
As for the bank guarantee, there is one caveat - its duration without fail exceeds the validity period of the official agreement of the parties for one month or more.
Contract security conditions include a clear definition of the timing of this procedure, including the return of the guarantee amount. If we turn to the legislation, we can find that it does not contain strict requirements in this regard. 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 must be displayed in the contract.
When can a guarantee be refused?
In addition to the return of guarantee funds, there is still the possibility of initially rejecting a service such as securing a contract. 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 can be several reasons for such a decision:
- the bank guarantee does not comply with the conditions that the enforcement of the contract implies;
- in the register there is no information about the bank that offers warranty services;
- Inconsistency of the guarantee offered by the bank with the requirements contained in the documents related to procurement, invitations to participate in the process of determining the supplier, as well as notifications of cooperation.
If the customer does not consider the provision of the contract as a necessary measure, then he must notify the bank of his refusal in writing within three business 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 come into effect from the moment when the maximum contract prices are reduced by more than 25%. We are talking about the process of selecting a suitable financial structure by the customer, which takes place in the format of a tender or auction.
The essence of the measures themselves is as follows: the provision of the contract, which the supplier is ready to provide, determined during the competitive selection process, increases by 1.5 times compared to the figures that were originally provided. In other words, if the amount of security equal to 10% of the initial maximum price of the contract is fixed in the auction documents , then with the above reduction of more than 25%, the amount of the guarantee will be increased to 15%. That is, you still have to pay for dumping, which makes the latter not a very profitable strategy.
Exception to the rule
There is a certain type of bank guarantee that is not included in the register. This rule covers the security of applications, which is carried out at closed events created to determine the supplier, contractor 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 cannot be disclosed.
It is in such circumstances that the lack of information in the register about the guarantee provided by a particular bank is not a good reason for refusal.
Summary
Ensuring the fact that the contract will be executed is more than an actual measure, since it makes cooperation reliable and stable. At the moment, the legislation clearly regulates this process and this enables customers (budget organizations) to continue active cooperation with suppliers, minimizing risks.