Refund from the trading platform. How to return application security. What to do if the customer does not pay for the contract

Date: 07/25/2016

When making a purchase under 44-FZ, the customer is obliged to establish requirements for securing the application if the purchase is carried out through a competition or auction 1. Such a requirement should increase the responsibility of the procurement participant for fulfilling the obligations that he undertakes when submitting an application: in particular, if he wins, for the obligation to sign a contract on the terms established by the customer in the procurement documentation and the terms of his application.

Form of security (payment by the procurement participant of a deposit Money or the provision of a bank guarantee) depends on the procurement method - if an electronic auction is held, funds are deposited, if a competition or closed auction is held, then the procurement participant himself chooses the option that is more convenient for him.

When holding a tender or closed auction, funds may be deposited by the bidder into a special account specified by the customer in the procurement documentation.

A participant in an electronic auction must place funds on the participant’s personal account opened by the operator electronic platform to carry out operations to secure participation in electronic auctions (when submitting an application for participation in the auction, the operator blocks funds in this account in the amount of the application security).

Of course, compared to a bank guarantee, depositing funds may be less attractive for the procurement participant, since to use this option he needs to have available funds that he can temporarily withdraw from his circulation.

Let us remind you that, depending on the customer’s decision and the conditions of a specific purchase, the amount of the application security can reach 5% of the initial (maximum) contract price and cannot be less than 0.5% 2 . Therefore, in practice, the contribution of funds is most often used by procurement participants only in cases where this cannot be avoided, namely when participating in electronic auction. And that is why the question of receiving back the funds deposited as security for the application is relevant both for those participants who become winners of the auction and for those who lose the auction.

The legislation on this matter establishes certain “rules of the game” 3 . Let us consider them taking into account the features of the procurement method used.

Methods, procedures, terms and cases of return of application security

The return of funds contributed as security for the application is carried out by transferring them by the customer to the account of the procurement participant during a tender and closed auction, and during an electronic auction - by stopping their blocking by the electronic operator trading platform on a personal account opened by the platform for the procurement participant.

In the first case information about the account to which the customer must transfer money is contained in the payment order (its copy), which the participant in the competition or closed auction must provide as part of his application 4 . After the occurrence of one or another reason for the return of the application security (see below), in principle, no separate actions are required from the procurement participant, although it probably would not hurt to send a letter to the customer requesting the return of the application security 5 .

In the second case After unlocking funds in his personal account, a procurement participant can either leave these funds with the operator for use when participating in other procurements, or receive them into his bank account in accordance with the regulations of a specific site.

For example, the relevant regulations of the Sberbank-AST platform 6 establish that the withdrawal (return) of funds is made on the basis of an instruction (application) of a participant, executed in personal account on the electronic platform. In this case, the operator rejects the application for withdrawal (return) of funds if the specified amount of funds exceeds the balance of available funds in the participant’s personal account - this can, in particular, happen if, after unlocking the funds, the participant submitted a new application to participate in a new electronic auction. Transfer of funds is made according to the details specified in the order (application), and in the absence of such - according to the details specified by the participant during accreditation on the electronic platform. The transfer period is within 3 working days from the date the operator receives the corresponding instruction (application) from the participant. Let us note that this period was not invented by the electronic platform, but is determined by the relevant legislation 7.

Refunds to the account of the procurement participant during a tender and closed auction must be made within 5 working days, and the termination of blocking of funds on the account during an electronic auction - within 1 working day from the date of occurrence of one of the following cases 8:

Signing a protocol for the consideration and evaluation of applications for participation in a competition, a protocol for summing up the results of an electronic auction or a protocol for a closed auction. But this provision applies only to those procurement participants who lost the auction. If the auction has taken place or, in accordance with the signed protocol, the contract is concluded with the only participant, then other cases apply to the winner (sole participant) (see paragraphs 2 and 7 below). This protocol must be posted in the Unified Information System for open procurement methods, or information about this decision must be specifically communicated to procurement participants for closed procurement methods.
Conclusion of a contract with the winning bidder (the only bidder). This provision applies only to the winner (the only bidder), because the function of securing the bid is precisely to motivate him to conclude a contract based on the results of the auction. Let us note that the conclusion of the contract can take place no earlier than 10 days from the date of publication of the protocol with the results of the tender in the Unified Information System 9 .
Cancellation of the auction by the customer. In this case, the return of the security is carried out in relation to all participants. Please note that the decision to cancel the tender must be posted in the Unified Information System on the day this decision is made (for open procurement methods), and must also be immediately brought to the attention of the procurement participants who submitted applications (if the customer has information to communicate with these participants); auctions are considered canceled from the moment the decision to cancel them is posted in the Unified Information System 10. With closed procurement methods, only targeted notification of procurement participants occurs the decision taken.
Rejection of the bidder's application. In this case, the return of the security is carried out specifically in relation to this participant. Note that the decision to reject an application must be recorded by the customer in a protocol, which is placed in the Unified Information System (for open procurement methods) no later than the business day following the date of signing the protocol during an open tender 11, or no later than the date of consideration of applications for participation in an electronic auction 12. With closed procurement methods, the corresponding protocol is not placed in the Unified Information System, but only targeted notification of participants about the decision made occurs. The same case is equivalent to the situation when a participant is removed from participation in the tender or the customer refuses to enter into a contract with him at any time before the conclusion of the contract due to the fact that the customer has discovered that the tenderer has provided inaccurate information in his application regarding his compliance with the established requirements or violated the rules for the supply of vital and essential medicines 13 . We also point out that the legislation defines a special case when the rejection of an application by a participant in an electronic auction may, on the contrary, be grounds for refusing to return the application security to him (see below).
Withdrawal of an application by a procurement participant before the deadline for submitting applications. To do this, the procurement participant must send a corresponding notification to the customer or the operator of the electronic site, and the date of withdrawal will be considered the date of receipt by the addressee of this notification 14 . Please note that if the addressee receives the notification after the deadline for submitting applications, then such notification will be considered invalid, and therefore the procurement participant will not be able to count on a quick return of the security for his application - it will occur on other grounds and, therefore, within a different time frame. In the notice of withdrawal of an application, it is recommended to separately draw the addressee’s attention to the need to return the application security (for an example, see a sample notice of withdrawal of an application for participation in open competition in SPS "Consultant Plus" (Guide to contract system)).
Receipt of an application for participation in the auction after the deadline for submitting applications. It should be noted that there may be difficulties in determining the date of receipt of such an application when using non-electronic procurement methods, since the legislation here requires the customer to register the receipt of those applications that he receives only before the specified deadline 15. Therefore, the procurement participant is recommended to submit his application in this way (for example, by registered mail with notification) so that the deadline for receipt of the application can be documented regardless of when it is received by the customer.
Receipt by the customer of a decision of the body authorized to carry out control in the field of procurement to refuse to approve the conclusion of a contract with sole supplier, and in the case of an electronic auction - receipt by the operator of the electronic platform from the customer said decision, sent no later than the business day following the date the customer receives the specified decision. Let us remind you that in order to conclude a contract with a single bidder as the only supplier (except for certain cases), the customer must obtain approval from the FAS or the executive authority of a constituent entity of the Russian Federation (authority local government), authorized to exercise control in the field of procurement 16. If there is no such agreement, then the contract based on the procurement results is not concluded, and the procurement participant with whom the customer was going to conclude the contract as the only participant is returned the application security. Let us note that the case of an electronic auction right now falls into the exceptions to this rule - based on its results, approval for concluding a contract with a single supplier is not required.

In addition, the operator of the electronic site is obliged to stop blocking transactions on a personal account opened for conducting operations to secure participation in an electronic auction of a procurement participant who did not take part in such an auction, in relation to funds in the amount of securing an application for participation in it within 1 working day from the date of posting the protocol of such auction on the electronic platform 17.

Let us also draw attention to the fact that the operator of the electronic site must return to the participant in the electronic auction not only the amount of the security itself, but also the income received by him from the placement of funds contributed as security for applications during the period of placement of these funds on the account of the operator of the electronic site in the bank from the moment of blocking of these funds until the termination of their blocking on the basis of an agreement concluded by the operator of the electronic site with each procurement participant when he passes accreditation on the electronic site 18.

Such income may represent deposit interest if the site operator uses an account opened with a bank under a bank deposit agreement for operations with application security funds. However, in practice, this provision, as a rule, does not work - most often, operators, not seeing any benefits for themselves in using a deposit account (after all, the interest must still be given to the procurement participant), use a simple bank account for these operations, where The bank does not charge any interest on the funds placed. However, procurement participants are still advised to check with the operator of the electronic platform which account he uses for transactions with application security funds. If this is still a bank deposit account, and the operator does not transfer any additional amounts to the participant, then it is necessary to demand that the operator transfer the appropriate amounts, and if he does not agree to this, then go to court about this 19 .

However, we note that in accordance with the provisions of the federal legislation on the contract system, the considered requirement to pay participants in an electronic auction the income received by the operator of the electronic site does not apply to those electronic sites that were selected before the entry into force of 44-FZ 20. These platforms include: OJSC "Unified Electronic Trading Platform" (www.roseltorg.ru), CJSC "MICEX-Information Technologies" (www.ets-micex.ru), State Unitary Enterprise "Agency for State Order, investment activities and interregional relations of the Republic of Tatarstan" (www.zakazrf.ru), CJSC Sberbank-Automated Trading System (www.sberbank-ast.ru), LLC RTS Index Agency (www.rts-tender.ru) 22.

Responsibility of the customer and the operator of the electronic platform for the return of application security

In case of delay in fulfillment by the customer or operator of the electronic site of their obligations to timely return funds or stop blocking them, the procurement participant, including the winner in the procurement, has the right to demand payment of penalties 23 . The penalty is accrued for each day of delay in fulfilling the obligation, starting from the day following the day of expiration of the deadline for fulfilling the obligation established in accordance with this article, and is established in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force on the date of payment of the penalty 24 of the amount not returned on time or from the amount the blocking of which must be stopped. And there are already such precedents when procurement participants collect interest from customers for the unlawful use of their funds 25 .

There is also administrative responsibility here. In particular, violation of the terms for the return (unblocking) of funds deposited as security for the application entails the imposition of administrative fines on the customer or operator of the electronic platform from 5 to 90 thousand rubles. 26

In addition, it should be noted that in the case of electronic auctions, the bank that services the operator’s account bears joint responsibility along with the operator of the electronic site for compliance with the deadline for returning funds to secure the application.

Cases when application security funds are not returned to the procurement participant

The procurement participant cannot count on the return of the application security in the following cases 28:

The procurement participant, recognized as a supplier (contractor, performer), refused or evaded concluding a contract. Note that here we are talking about the only participant bidding or winning bidder. If a contract is not signed by a tender participant whose application is assigned the second number, this is not considered an evasion of concluding a contract 29 . As for the electronic auction, the situation here from a formal legal point of view is not very clear: on the one hand, the legislation does not have the same rule as in relation to a competition (see above), and on the other hand, the procedure and terms for concluding a contract based on the results of the electronic auction and the established deadlines for returning the application security, it is possible that by the time the “first number” is recognized as having evaded concluding a contract, the “second number” will already have the application security returned in the event that he also evades the conclusion contract, he will have nothing to “return.” However, taking into account the fact that the law allows the “second number” to refuse to conclude a contract 30, the issue of non-return of application security to him is usually not raised in practice.
The procurement participant recognized as the winner of the procurement did not provide the customer or provided security for the execution of the contract in violation of the established conditions 31 .

Special attention It should be noted that the legislation defines a special case when, during an electronic auction, the operator of the electronic site does not return the application security to the procurement participant whose application to participate in the auction is rejected 32 . This happens if, on one electronic platform, in relation to one procurement participant, 3 times during one quarter, auction commissions (one or more customers) decide that the second parts of its applications do not comply with the requirements of the auction documentation 33 - in this case, the security of the last of these is not returned to the participant 3 applications.

In simple terms, this rule is intended to punish those procurement participants who are dishonest and negligent in drawing up applications and who do this systematically. However, the procurement participant who falls under such a sanction has the opportunity to appeal its application - within 30 days after the last rejection of the application, the application security remains blocked in the account of the operator of the electronic platform and only after this period is transferred to the customer. This is the time given to the procurement participant to appeal the decision of the auction commission. Let us note that the practice of resolving disputes in the FAS and judicial practice on this matter are very interesting.

Example

In the Vladimir region in May 2014, a procurement participant (an asphalt concrete plant) submitted 28 applications on one day to participate in electronic auctions conducted by the regional administration. All of these bids were rejected by the customer due to the fact that they did not contain the documents required by the auction documentation. Based on this, the operator of the electronic platform continued to block funds in relation to the security funds for every third application of a procurement participant (the withheld amount amounted to 750 thousand rubles). The plant went to court, believing that there was no sign of systematicity in its actions, since its applications were submitted simultaneously and they all had the same violations, which became the reason for their rejection. Although the funds have already been transferred by the operator of the electronic platform to the customer, the litigation in the courts of various instances in this case has not yet been completed and has a rich history 34 .

The concept of “quarter” is also interpreted ambiguously. According to the Ministry of Economic Development of the Russian Federation, a quarter begins from the date the auction commission made a decision on the non-compliance of the first application submitted by such a participant 35, that is, for example, auction applications submitted in December and January are considered submitted within one quarter. But in accordance with civil law, a quarter is considered equal to 3 months, and quarters are counted from the beginning of the year 36. Although logically, the first interpretation is probably more justified - after all, if a procurement participant submitted 2 “crooked” auction bids at the end of one calendar quarter, and 2 more similar bids at the beginning of the next calendar quarter, then in the interpretation of civil legislation there is no he will not be subject to sanctions. Note that in judicial practice There is an interpretation of the concept of “quarter” that does not coincide with the interpretation of civil law - the court considers auctions that took place in March and April as taking place during one quarter 37 . In the administrative regulations of electronic platforms, the concept of “quarter”, as a rule, is also not specified in any way.

1 Part 1 Art. 44 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

2 Parts 14-15 Art. 44 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

3 Art. 44 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

4 P. 5 h. 2 tbsp. 51 and paragraph 4, part 2, art. 88 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

7 Part 28 Art. 44 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

8 Part 6 art. 44 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

9 Part 2 art. 54 and part 9 of Art. 70 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

10 Part 3 Art. 36 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

11 Part 12 Art. 53 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

12 Part 7 Art. 67 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

13 Chh. 9-10 tbsp. 31 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

14 Art. 43 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

15 Part 6 Art. 51 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

16 P. 25 h. 1 tbsp. 93 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”, Order of the Ministry of Economic Development of Russia of 03/31/2015 No. 189 “On approval of the Procedure for approving the use of closed methods for identifying suppliers (contractors, performers) and the Procedure for agreeing to conclude a contract with a single supplier (contractor, performer).”

17 Part 23 Art. 44 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

18 Part 8 Art. 44 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

20 Part 10 Art. 112 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

21 Letter of the Ministry of Economic Development of the Russian Federation, the Federal Antimonopoly Service of the Russian Federation, the Treasury of Russia dated May 25, 2010 No. 8384-AP/D22 “On the procedure for conducting open auctions in electronic form, the procedure for concluding government contracts based on the results of open auctions in electronic form, the procedure for monitoring operators of electronic platforms” .

22 Letter of the Ministry of Economic Development of the Russian Federation, the Federal Antimonopoly Service of the Russian Federation, the Treasury of Russia dated May 25, 2010 No. 8384-AP/D22 “On the procedure for conducting open auctions in electronic form, the procedure for concluding government contracts based on the results of open auctions in electronic form, the procedure for monitoring operators of electronic platforms” .

23 Part 29 Art. 44 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

24 From 01.01.2016 to relations regulated by acts of the Government Russian Federation, in which the refinancing rate of the Bank of Russia is used, instead of the specified rate, the key rate of the Bank of Russia is used, unless otherwise provided by federal law (Resolution of the Government of the Russian Federation dated December 8, 2015 No. 1340).

25 See, for example, Resolution of the Arbitration Court of the North Caucasus District dated July 16, 2015 N F08-4824/2015 in case N A18-525/2014

26 See Art. 7.31.1 Code of Administrative Offences.

27 Part 11 Art. 44 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

28 Part 13 Art. 44 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

29 Part 6 Art. 54 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

30 Part 14 Art. 70 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

31 Enforcement of the contract must be carried out in accordance with the requirements of Art. 96 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

32 Part 27 Art. 44 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

33. 6 tbsp. 69 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

Submission of an application by a participant in a state competition or auction is accompanied not only by a set of documents, but also by securing the application - a cash deposit necessary for the initial screening of frivolous applicants.

Application security amount

Law 44-FZ obliges the customer to demand. Previously, this was his right, but from January 1, 2014 it became his responsibility. He can himself determine the amount of security for the application within the limits specified by law. If the contract value is over 3,000,000 rubles, the monetary security for the application is 0.5-5% of this amount. If the contract costs less than 3,000,000 rubles, security is taken in the amount of 1%.

Companies participating in state competitions or auctions can provide their applications from own funds. However, since not everyone is comfortable with withdrawing money from circulation, a document is often drawn up for these purposes, which confirms the bank’s obligation to pay a penalty to the customer in the event that the winning company refuses to enter into a contract for any reason.

Each potential participant should provide application security, which will either be deposited into the customer’s account in cash or taken into account in the form of a bank guarantee.

Securing an application is not a payment for participation in the competition. If the participant does not become the winner of the competition or auction and does not violate the rules, this money is returned back. The bank guarantee is not refundable, there is no point in that. When choosing this type of security, you should keep in mind that issuing a bank guarantee costs money that will never be returned to you.

When is the application security returned?

Federal Law No. 44 provides for the following cases when the application security is returned to the participant in the state competition or auction:

Protocols of consideration and evaluation of applications that were submitted for participation in a competition or auction, protocols of consideration of the second parts of applications, protocols of closed auctions are signed. The security is returned to everyone except the winner. The winner receives the amount of the application security back upon conclusion of the contract.
Rejection of the submitted application.
Cancellation of the definition of supplier, contractor or performer.
Refusal of a participant to participate in a competition or auction, declared before the deadline for submitting applications.
Submitting an application after the deadline for admission.
Removal of a participant from a competition or auction or subsequent refusal by the customer to sign a contract with the winner.

Refund application security?

Electronic operator auction site and the bank that opened the account for accounting for funds deposited as security for applications are jointly responsible for the return of the security itself and for compliance with its deadlines. The return period is prescribed by law and is five working days after the occurrence of the reasons described above.

When holding government auctions in electronic form, the security is returned within one day. In case of delay, the participant in the competition or auction is given the right to demand a penalty for each day of delay.

Hello, dear colleague! Today I want to tell you about such a common tool as securing an application. This tool is used to protect customers from unscrupulous suppliers. The essence of this tool is as follows. The supplier (procurement participant), who intends to take part in a particular procurement, transfers funds in the amount of the application security to a special bank account, or provides the customer with a bank guarantee. Thus, the supplier confirms the seriousness of its intention to participate in the procurement. If he doesn't comply this requirement, then his application for participation will be rejected. As a rule, the application security is returned (unblocked) to the participants after the procurement is completed, with the exception of certain cases, for example, if the winner evades concluding a contract. We will talk about all the nuances of using this tool within the framework of 44-FZ, as well as within the framework of 223-FZ, in this article. So, let's start studying... ( Note: This article was updated on 08/07/2018).

1. Securing the application under 44-FZ

Issues of securing an application within the framework of 44-FZ are regulated by Articles 44 and 45.

According to Part 1 of Art. 44 44-FZ customerMUST establish a requirement for securing applications for participation in competitions and auctions, provided that that the NMCC exceeds 5 million rubles , unless otherwise established by the Government of the Russian Federation.

But the Decree of the Government of the Russian Federation No. 439 dated April 12, 2018 approved the value of NMTsK, if exceeded by the customer MUST establish a requirement for securing applications for participation in competitions and auctions in the amount of 1 million rubles.

Thus in procurement up to 1 million rubles There is no requirement for customers to provide applications.

Security for an application for participation in a tender or auction may be provided by the procurement participant in the form ofMoney (your funds, ) or bank guarantee . The choice of method for securing an application for participation in a competition or auction is made by the procurement participant himself. Until July 1, 2019, participants in electronic competitions and auctions can only provide their applications with money.

More details about the bank guarantee under 44-FZ are described.

According to Part 10 of Art. 44 44-FZ, when conducting an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an electronic auction, funds intended to secure applications are contributed by procurement participants to ( Note: this procedure will come into effect from October 1, 2018) opened by them in banks, the list of which is approved by Order of the Government of the Russian Federation No. 1451-r dated July 13, 2018. As of August 6, 2018, only 18 banks were included in this list.

If you need a loan to secure your application to participate in the auction, you can leave your application.

When conducting requests for quotations and requests for quotations in in electronic format no application security is required. When conducting a request for proposals, the requirement for application security is established only if this procurement method is used instead of a failed repeated tender ( clause 1 part 4 art. 83 44-FZ ). But when conducting a request for proposals in electronic form, the requirement to secure the application is established only if this procurement method is used instead of failed electronic tenders and auctions (clause 2, part 4, article 83.1 44-FZ).

The requirement to secure an application applies equally to all procurement participants, with the exception of government institutions that do not provide security for the applications they submit for participation in procurement.

Important: If the procurement participant, as part of the application, submits documents confirming the payment of funds as security for the application for participation in the competition or auction, and before the date of consideration and evaluation of the applications, the funds have not been received to the account specified by the customer in the procurement documentation, such participant is recognized as not having provided security for the application . This rule does not apply when conducting an open competition in electronic form, a competition with limited participation in electronic form, a two-stage competition in electronic form and an electronic auction.

1.1 Types of application security

Information on the types of application security is presented below in tabular form:

1.2 Amounts of security for applications under 44-FZ

The table below provides information on the amount of application security:

1.3 Calculator for calculating the amount of application security

To automatically calculate the amount of application security, there is an online calculator from the National Association of Purchasing Institutes (NAI). This calculator is located.

Below I have posted a screenshot of the page from the NAI website on which this tool is located.

This calculator allows you to calculate the application security for participation in auctions and competitions. In addition, the calculator also allows you to calculate the amount of security for the performance of the contract and form it based on the results of the calculation memo for inclusion in the procurement documentation. This tool is primarily intended for customers, but will also be useful for suppliers.

1.4 Deadlines for returning security for applications under 44-FZ

Cases and deadlines for returning application security when participating in competitions(open competition, competition with limited participation, two-stage competition) and closed methods of identifying suppliers (contractors, performers) are presented in the table below:

Cases and deadlines for returning application security when participating in an open competition in electronic form, a competition with limited participation in electronic form, a two-stage competition in electronic form, or an electronic auction are presented below.

The blocking of funds in the special account of the procurement participant is terminated by the bank within no more than one business day from the date of occurrence of one of the following cases:

A protocol for summing up the results of an open competition in electronic form, a competition with limited participation in electronic form, a two-stage competition in electronic form, and an electronic auction is posted in the UIS and on the electronic platform;
The purchase has been cancelled;
The participant's application is rejected by the customer;
The participant withdrew his application before the deadline for submitting applications;
The participant's application was received after the deadline for submitting applications;
The participant was removed from the procurement or refused to conclude a contract with the winner in accordance with Parts 9 and 10 of Art. 31 44-FZ;
The customer received a decision from the procurement control body to refuse to approve a contract with a single supplier (contractor, performer).

The basis for blocking and unblocking by the bank will be information received from the site operator.

Important:

The bank accrues interest for the use of funds located in a special account, including during the period of their blocking in order to secure an application. The amount of such interest is determined by a special bank account agreement concluded by the procurement participant with the bank.
Funds that are in a special account of a procurement participant can be used to secure applications only for this procurement participant.
If during one quarter on one electronic platform in relation to the second parts of 3 applications for participation in an open competition in electronic form, a competition with limited participation in electronic form, a two-stage competition in electronic form, an electronic auction, submitted by one participant of such procurement, the procurement commission made decisions on the non-compliance of these applications with the requirements stipulated by the documentation on such procurement, on the grounds established by clauses 1 and 2 of part 4 of art. 54.7, clause 1, part 6, art. 69 44-FZ (except for cases where this participant appealed these decisions in accordance with 44-FZ and, based on the results of the appeal, a decision was made that these decisions were unfounded), the bank, based on the relevant information received from the operator of the electronic platform, after 30 days from the date of adoption of the last of these decisions transfers to the appropriate budget budget system of the Russian Federation, funds in respect of which were blocked in order to secure the last application in the special account of the procurement participant. ( Explanation: if the participant was rejected for the second part of the application for the third time in a quarter on the same electronic platform, then the bank, based on information received from the operator of the electronic platform, transfers the security of his last application to the corresponding budget of the budget system of the Russian Federation).

1.5 Sample letter for return of application security

Although Federal law No. 44-FZ and established exact deadlines for the return of funds or the termination of their blocking, there are often cases when the customer or bank violates these deadlines. Therefore, I think that it would not be superfluous to remind the customer (bank) of the need to return (unblock) your money. To do this, you need to send a corresponding letter to the customer (bank). You can download a sample of such a letter.

1.6 Responsibility of the customer (bank) for untimely return of application security

In case of delay in fulfillment by the customer or bank of obligations to timely return funds or stop blocking them, the procurement participant, including those recognized as a supplier (contractor, performer), has the right to demand payment of penalties.

The penalty is accrued for each day of delay in fulfilling the obligation, starting from the day following the day of expiration established in accordance with Art. 44 44-FZ of the deadline for fulfilling the obligation. Such a penalty is set in the amount of 1/300 of the key rate of the Central Bank of the Russian Federation in force on the date of payment of the penalty on the amount not returned on time or on the amount the blocking of which must be stopped (Part 28, Article 44 44-FZ).

1.7 Cases of non-return of application security under 44-FZ

According to Part 15 of Art. 44 44-FZ, the return of funds deposited as security for the application is not carried out, or a demand is made for the payment of funds under a bank guarantee, or funds blocked in a special account of the procurement participant are transferred to the account on which, in accordance with the legislation of the Russian Federation, transactions with funds received by the customer, within 1 business day from the date of inclusion of information about the procurement participant in accordance with Art. 104 44-FZ in the following cases:

evasion or refusal of the procurement participant to conclude a contract;
failure to provide or provide in violation of the conditions established by 44-FZ, before the conclusion of the contract, to the customer of security for the execution of the contract.

2. Securing the application under 223-FZ

Many suppliers are wondering: are there requirements for securing applications when participating in procurement under 223-FZ?

According to Part 25 of Art. 3.2 223-FZ z salesman RIGHT provide in the Procurement Regulations the requirement to secure applications for participation in competitive procurement, including the procedure, deadline and cases of return of such security.

At the same time, the notice of procurement, procurement documentation must indicate the amount of such security and other requirements for such security, including the terms of a bank guarantee (if such a method of securing applications for participation in procurement is provided for by the Customer’s Procurement Regulations in accordance with 223- Federal Law).

Security for an application for participation in a competitive procurement may be provided by a participant in a competitive procurement by making Money , providing bank guarantee or in any other way provided for by the Civil Code of the Russian Federation, with the exception of procurement in accordance with Art. 3.4 223-FZ (electronic purchases on electronic trading platforms among SMEs).

The selection of the method of securing an application for participation in a competitive procurement from among those provided for by the customer in the notice of procurement and procurement documentation is carried out by the procurement participant on one's own .

3. Loan to secure the tender application

As we have already discussed with you earlier, the amount of application security ranges from 0.5% to 5% of the NMCC. Contract prices vary, and accordingly, the amount of security can be both small and quite large. Therefore, organizations that often participate in tenders face the same problem - the lack of free working capital. If only cash is used as security for applications, then the number of purchases in which the supplier can simultaneously participate will be limited by the amount of his available funds. For most participants, withdrawing money from an organization’s circulation for a period of several days to several months can be very difficult.

In such a situation, the supplier faces difficult choice, or withdraw from circulation the necessary amount for security, or refuse to participate in the procurement. But there is an alternative option - taketender loan or a tender loan to secure the application.

However, a tender loan has a number of advantages over a loan. If a tender loan is provided only by a credit company (bank), then a tender loan can be issued by any microfinance organization.

You can take out a tender loan either directly from the bank itself or by turning to a broker for help. The broker, as a rule, receives the same percentage for his services as the bank. However, receivingA loan to secure a tender application through a broker takes significantly less time than through a bank. Essentially, the broker is an intermediary between the participant and the bank, and takes on part of the work (checking documents, applying for a loan, etc.), for which he receives his reward from the bank.

Another important point is that you can get a loan to secure an application from a broker without paying collateral. In banks, depositing collateral is most often prerequisite obtaining a tender loan, and may also require opening a current account with this bank.

Depending on the duration of the agreement with the bank, tender loans can be of two types:

With a revolving credit line. Such a loan allows the supplier to participate in several purchases at once over a specified period. When applying for such a loan, the terms and amounts of payments are agreed upon immediately; new payments will be provided only after the previous ones have been repaid.
Disposable. This type of tender loan allows the supplier to take part in only one procurement procedure, agreed upon in advance. If all established obligations to the bank are met, subsequent loans for the supplier will be obtained much faster (within 3-4 days) and on more favorable terms.

The bank's decision to issue a loan takes 1-3 days. The rate on tender loans varies between 14-21% per annum. Loan term - up to 90 days. The package of documents required to obtain a loan includes financial statements for the year, a certificate of absence of debts, an application form and details of the tender in which participation is planned (or a link to it). Scroll necessary documents, as well as other conditions for issuing a loan in different banks may differ.

To summarize the above, we can say that a credit (loan) to secure a tender application is an excellent tool that allows you to simultaneously participate in several tenders without compromising the main activity of the supplier.

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1) from one-half percent to one percent of the initial (maximum) contract price, if the size of the initial (maximum) contract price ranges from five million rubles to twenty million rubles;

2) from one-half percent to five percent of the initial (maximum) contract price, if the initial (maximum) contract price is more than twenty million rubles.

17. If the procurement is carried out in accordance with this Federal Law, the procurement participant is an institution or enterprise of the penal system or an organization of disabled people and the initial (maximum) contract price is more than twenty million rubles, the amount of the application security cannot exceed two percent initial (maximum) contract price.

18. Securing an application for participation in an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an electronic auction is possible by blocking funds if there are unblocked funds in the special account of the procurement participant in the amount provided for in the documentation procurement, or by providing a bank guarantee in the manner determined in accordance with Part 29 of this article, information about which is included in the registers of bank guarantees provided for in Article 45 of this Federal Law.

19. By submitting an application for participation in an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, or an electronic auction, the procurement participant agrees to blocking the funds in his special account in the amount of the security for the corresponding application. Moreover, if the registers of bank guarantees provided for in Article 45 of this Federal Law contain information about a bank guarantee issued to a procurement participant to secure an application for participation in the corresponding open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form form, electronic auction, blocking of funds located in his special account in the amount of security for the corresponding application is not carried out.

20. Within one hour from the date and time of the deadline for filing applications for participation in an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an electronic auction, the operator of the electronic site sends information about the procurement participant to the bank and the amount of funds necessary to secure the application, except for the case where the registers of bank guarantees provided for in Article 45 of this Federal Law contain information about the bank guarantee issued to the procurement participant to secure such an application. Bank within one hour from receipt specified information the operator of the electronic platform is obliged to block funds in a special account of the procurement participant in the amount of the security for the corresponding application. In this case, blocking is not carried out if there are no unblocked funds in the special account of the procurement participant in the amount of security for this application, information about which was sent by the operator of the electronic site. The operator of the electronic site is obliged to return the application to the participant who submitted it within one hour from the date and time of the deadline for filing applications for participation in an open competition in electronic form, a competition with limited participation in electronic form, a two-stage competition in electronic form, an electronic auction in the aggregate following conditions:

1) there are no unblocked funds in the special account of the procurement participant in the amount of the application security or blocking of funds in the special account cannot be carried out due to the suspension of transactions on such an account in accordance with the legislation of the Russian Federation;

2) in the registers of bank guarantees provided for in Article 45 of this Federal Law, there is no information about the bank guarantee issued to the procurement participant by the bank for the purpose of securing the application.

21. In case of withdrawal of an application for participation in an open competition in electronic form, a competition with limited participation in electronic form, a two-stage competition in electronic form, an electronic auction in the manner established by Part 17 of Article 54.7 and Part 9 of Article 69 of this Federal Law, the operator of the electronic The site, within one hour from the moment the application is withdrawn, sends information to the bank, on the basis of which the bank, within one business day, stops blocking funds in the special account of the procurement participant in the amount of the security for the specified application, carried out in accordance with Part 20 of this article.

22. The operator of the electronic platform, within one working day following the date of receipt of the protocol specified in Part 6 of Article 54.5, Part 6 of Article 67 of this Federal Law, sends to the bank information about the refusal of the procurement participant to participate in the relevant electronic procedure. The bank, within one business day from the moment of receipt of the specified information, stops blocking funds in the special account of such procurement participant in the amount of the security of the application for participation in the specified procedure, carried out in accordance with Part 20 of this article.

23. If a participant in an electronic auction did not take part in the electronic auction, the operator of the electronic platform, within one business day from the date of posting the protocol of such auction, sends the relevant information to the bank. The Bank, within one business day from the moment of receipt of the specified information, stops blocking funds in the special account of the procurement participant in the amount of the security of the application for participation in such an auction, carried out in accordance with Part 20 of this article.

24. Within one working day from the date of posting on the electronic platform the protocol specified in Part 12 of Article 54.7, Part 8 of Article 69 of this Federal Law, the bank, on the basis of relevant information received from the operator of the electronic platform, terminates the blocking carried out in accordance with Part 20 of this article funds in a special account of a procurement participant who submitted an application for participation in an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an electronic auction, which was recognized as not meeting the requirements of the procurement documentation, in relation to funds in the amount security for this application, except for the case provided for in Part 27 of this article.

25. Funds that are in a special account of a procurement participant can be used to secure applications only for this procurement participant.

26. The bank accrues interest for the use of funds located in a special account, including during the period of their blocking in order to secure an application. The amount of such interest is determined by the special bank account agreement concluded by the procurement participant.

27. If during one quarter on one electronic platform in relation to the second parts of three applications for participation in an open competition in electronic form, a competition with limited participation in electronic form, a two-stage competition in electronic form, an electronic auction, submitted by one participant of such procurement, the procurement commission made decisions on the non-compliance of these applications with the requirements stipulated by the documentation on such procurement, on the grounds established by paragraphs 1 and 2 of part 4 of Article 54.7, paragraph 1 of part 6 of Article 69 of this Federal Law (except for cases where this participant appealed these decisions in accordance with this Federal Law and, based on the results of the appeal, a decision was made that these decisions were unfounded), the bank, on the basis of relevant information received from the operator of the electronic platform, after thirty days from the date of adoption of the last of these decisions, transfers to the appropriate budget of the budget system of the Russian Federation, funds in respect of which were blocked in order to secure the last application in the special account of the procurement participant.

28. In case of delay in fulfillment by the customer or bank of the obligations provided for in this article to timely return funds or stop blocking them, the procurement participant, including those recognized as a supplier (contractor, performer), has the right to demand payment of penalties. The penalty is accrued for each day of delay in fulfilling the obligation, starting from the day following the day of expiration of the deadline for fulfilling the obligation established in accordance with this article. Such a penalty is established in the amount of one three hundredth of the key rate of the Central Bank of the Russian Federation in effect on the date of payment of the penalty on the amount not returned on time or on the amount the blocking of which should be stopped.

29. The Government of the Russian Federation determines the procedure for interaction between the procurement participant, the operator of the electronic platform and the customer in the event that the procurement participant provides a bank guarantee as security for an application for participation in an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, electronic auction.

The Russian legislator today uses the concept of “competition” or “auction” instead of “tender”, as before. But the principle of the auction is still the same - make a decision and select from the submitted proposals a participant who will provide the customer with a service or supply goods or perform work.

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Tenders can be closed or open, which depends on the composition of participants and the principle of their conduct. Open tenders are most often used; information about them can be obtained through the media. Applications for participation can be submitted by any suppliers of goods or services. Open tenders are usually held on electronic platforms.

Closed tenders are held because customers need goods or services that are available from a limited number of suppliers, and the latter must meet the requirements of the tender organizer (competition or auction). It is necessary to conduct a closed competition if the order is confidential.

To conduct such auctions, permission from the government authority is required. Information about a closed competition cannot be obtained through the media; it is sent to participants personally. You cannot even send an application and other documents electronically to participate in a closed auction.

An auction, as a form of bidding, differs from a competition. The customer has the right to choose not attractive offers to participate, but the price of goods or services. An auction, like a competition, can be open or closed.

For participants, this is an opportunity to reach a new level in business, but many do not want to take part in auctions, citing the fact that they require filling out documentation or do not have enough funds to submit (secure) an application. According to Federal Law No. 44 “On on a contract basis» the legislator has developed a mechanism to prevent unfair participation of suppliers and customers in tenders.

Thus, each participant is required to secure an application in an electronic auction under 44-FZ. Additionally, thanks to security, artificial price reductions and procurement disruptions are not allowed. After all, unscrupulous participants may set precisely these goals, and not the execution of government orders.

Having won the tender, they may refuse to sign the contract, but advance payment of security will prevent them from doing so. The requirement to secure the participants' application is specified in Art. 44, part 1 of the Law. An electronic auction is conducted using an electronic trading platform (ETP).

Standard standards

Regulatory Act No. 44 came into force at the beginning of 2014. It was decided that issues related to ensuring state and municipal institutions, will be held on a competitive basis in accordance with its provisions. The rules for securing applications for participation in auctions are set out in Art. 44−45 of the Law.

Concept and types by law

The law provides that to secure an application as a guarantee for participation in:

A potential participant has the right to independently choose the method of securing his application. A bank guarantee can be issued by a credit institution at the request of one of the parties. It is issued in the form of a written obligation, according to which the bank must pay a certain amount to secure the application ( Civil Code, art. 368, 370).

The guarantee also cannot be irrevocable and must meet the requirements of Federal Law No. 44, Art. 45, clause 2. The percentage of the bank guarantee can range from 5 to 30 of the initial contract price. The warranty period must be longer term submission of application for 2 months.

With the financial security that is required specifically to participate in an electronic auction, everything is much simpler. The participant (supplier) of the auction must ensure in advance that there is money in his account. The ETP operator will block a certain amount for the duration of the auction or until the contract is signed, provided that this participant won the auction.

If the organization takes part in a regular competition, the money can be transferred to the customer’s bank account. The requirement to secure an application is necessary if procurement by this method is used instead of repeated tenders that did not take place earlier (Federal Law No. 44, Article 83, Part 4, Clause 1).

According to the new rules, which will come into force in July 2019, participants will not be able to provide applications with bank guarantees. You will need to provide only money, and you will have to transfer it not to the ETP account, but to a special account. Procurement participants will be required to open these accounts.

When submitting an offer, the participant agrees that funds from the special account will be debited automatically by the operator. The application documentation will have to indicate that the participant chose the method of provision independently.

Money in the account for the current purchase will be blocked as soon as the application submission period expires. This means that it will not be possible to top up the missing amount, which means the application will be rejected.

In Art. 44 of the Law specifies how to secure applications for participation in tenders:

The requirements for securing applications are set by the customer in 2019. At the same time, he indicates the amount of security in the accompanying documentation for the competition. The customer also indicates the type of tender and how the application should be secured, but the method is chosen by the supplier.
To participate in an electronic auction, you must deposit a certain amount into your account.
The application must meet the requirements of the Civil Code. This means that only the institution specified in the Civil Code can give a bank guarantee.
The requirements for securing applications are the same for all organizations that need to take part in the procurement.
To take part in the auction, a potential participant’s personal account must have funds in an amount no less than the amount of security specified in the bidding documentation.
From the moment it becomes clear that the operator cannot block funds in the participant’s account in accordance with the provisions of this Law on the basis of competition, he is obliged to return the application within 1 hour.
Within 1 business day from the moment the operator was unable to block funds on the participant’s account or the latter withdrew the application, the money is no longer blocked automatically.
Funds that the ETP operator has not blocked for participation in this auction are available to the participant for use at his own discretion.

Application security amount

Security measures for participation in the auction in a certain amount are taken in accordance with Art. 44, pp. 14−15. They depend on the initial (maximum) contract price (NMCP) and sometimes the specifics of the enterprise that is the bidder. The law defines the NMCC in the provisions of Art. 22, this price is considered the maximum that the customer can pay for the contract.

The amount of security when conducting not only electronic auctions, but also other auctions in different cases may be:

To calculate the amount of security, you can use a special calculator online, it is presented by the National Association of Purchasing Institutes (NAI). The universal tool can be used not only by customers, but also by suppliers.

According to the new requirements coming into force in July 2019:

customers will need to establish application security for purchases from NMCC of more than 5 million rubles;
if the NMCC is 5−20 million rubles, the security for the application should be set at 0.5−1% of the initial price;
if the NMCC is more than 20 million rubles. The security for the application can be 0.5−5% of the contract price.

Now the minimum NMCC threshold, at which the customer is obliged to demand security for the application, has been set by the government in the amount of 1 million rubles. At the same time, the Law itself sets a threshold of 5 million rubles.

Only participants who are government institutions may not pay the security amount. Preferential conditions for participants with the status of a small business entity will be canceled according to the new requirements.

Other situations

The participant who wins the auction must inquire in advance when the amount invested is returned.

The security for the remaining participants is returned in the following cases:

the application is withdrawn before the deadline for admission;
electronic trading was cancelled;
the participant was rejected by the competition commission after considering the first or second part of the applications;
the customer canceled the purchase;
the potential customer submitted an application later than the deadline intended for acceptance and specified in the notice;
the purchase was not won by the supplier;
The procurement control body refused to allow the customer to enter into a contract with a single supplier.

The security is returned to the winner as soon as an agreement is concluded between him and the customer. But other participants who did not win the tender will also receive a refund upon the occurrence of the above events or after the end of the auction.

If the supplier contributed funds to participate in a competition or closed auction, the money will be returned to him in his bank account or the company that provided the loan.

After the electronic auction, the personal accounts of participants are unblocked by the ETP operator and again become available for participation on this site. If the supplier decides to return the money from the personal account to the bank account, he sends a request to the operator and receives it within 3 days.

When a bank guarantee has been provided by the participant, it is not returned to the principal, and collection on it is impossible.

Return period

The return period for the security will depend on what type of purchase the supplier applied for:

Cases of blocking and loss

If a participant is admitted to an electronic auction, his funds for securing the application are not returned immediately, but are blocked in the account that was opened by the electronic platform.

This happens step by step like this:

The ETP operator opens a special bank account where funds used by participants to secure applications will be credited.
To participate, a potential supplier must be accredited at the ETP.
The decision on accreditation of a potential participant is made within 5 days from the date of submission of the application and other documents. In another case, the contestant may be refused, but he must receive notification of the decision made (Federal Law No. 44, Article 61, paragraph 4). In the notification he will receive details for paying for the security.
The potential participant must credit funds to secure the application using the specified details. To do this, the ETP operator opens a special personal account for him, through which he must conduct transactions.
A potential participant must submit an application to participate in the electronic auction, and at the same time instruct the auction operator to block transactions on his personal account in the amount of funds needed to secure the application. The operator is obliged to do this within 1 hour from the moment the supplier submits the application.

Tender and exceptions

But there are situations when the cash guarantee is not refundable. Refunds are not made in accordance with Federal Law No. 44, Art. 44, part 13, if the winner evaded and did not sign the contract with the customer. In another case, if he did not provide security for the execution of the contract before signing it.

If the supplier is rejected from participating in the same ETP 3 times in a row within one quarter, then the funds to secure the application will go to the customer. But the customer whose purchase was the third for this supplier will receive them. The money will be transferred to the customer 1 month from the moment the purchase is rejected.

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