Return of the tender security to the participant. Securing the application: types of collateral, sizes, terms of return, calculation calculator

Date: 25.07.2016

Carrying out a purchase in accordance with 44-FZ, the customer is obliged to establish a requirement for securing the application if the purchase is carried out through a tender or auction 1. Such a requirement should increase the responsibility of the procurement participant for the fulfillment of those obligations that he assumes by submitting an application: in particular, in the event of his victory, for the obligation to sign a contract on the terms established by the customer in the procurement documentation and the terms of his application.

The form of security (making a deposit by the procurement participant or providing a bank guarantee) depends on the method of procurement - if an electronic auction is held, cash, if a tender or a closed auction is held, then the procurement participant himself chooses the option that is more convenient for him.

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

An electronic auction participant must place funds on the participant's personal account opened by the operator electronic platform to conduct operations to ensure participation in electronic auctions (when submitting an application for participation in an auction, the operator blocks funds on this account in the amount of the application security).

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

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

In this regard, the legislation establishes certain “rules of the game” 3. Let's consider them taking into account the peculiarities of the applied procurement method.

Methods, procedures, terms and cases of return of the 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 a closed auction, and in the event of an electronic auction - by stopping their blocking by the operator of the electronic trading platform on the 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 of the tender or closed auction is obliged to provide as part of his application 4. After the occurrence of one or another reason for the return of the security (see below), in principle, no separate actions from the procurement participant are required, although it will probably not hurt to send the customer a letter with a request to return the security of the application 5.

In the second case The procurement participant, after unlocking the funds on his personal account, can either leave these funds with the operator to use them when participating in other purchases, or receive them to his bank account in accordance with the regulations of a particular site.

For example, the relevant regulations of the Sberbank-AST site 6 establish that the withdrawal (refund) of funds is made on the basis of an instruction (application) of the participant, drawn up in personal account on the electronic platform. In this case, the operator rejects the application for the withdrawal (refund) of funds if the specified amount of funds exceeds the balance of free funds on the participant's personal account - this can, in particular, happen if, after unlocking the funds, the participant has submitted a new application for participation in a new electronic auction. The 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 term of transfer is within 3 working days from the date of receipt by the operator of the corresponding order (application) from the participant. Note that given time not invented by an electronic platform, but due to the corresponding legal norm 7.

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

1. Signing of the minutes of consideration and evaluation of applications for participation in the tender, the minutes of summing up the results of an electronic auction or the minutes of a closed auction. But this provision applies only to those procurement participants who lost the auction. If the auction took place or, in accordance with the signed protocol, the contract is concluded with their only participant, then other cases apply to the winner (the only participant) (see paragraphs 2 and 7 below). This protocol must be posted in the EIS when open ways procurement, or information about this decision must be addressed to the procurement participants using closed methods.
2. Conclusion of a contract with the winner of the auction (the only participant in the auction). 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 at the end of the bidding. Note that the conclusion of the contract can take place no earlier than 10 days from the date of placement in the EIS of the protocol with the results of trading 9.
3. Cancellation by the customer of the bidding. In this case, the return of the collateral is carried out in relation to all participants. Note that the decision to cancel the bidding must be posted in the EIS on the day this decision is made (with open procurement methods), and also be immediately communicated to the procurement participants who submitted bids (if the customer has information to communicate with these participants); trades are considered canceled from the moment the decision to cancel them is posted in the EIS 10. With closed procurement methods, only targeted notification of procurement participants about the decision.
4. Rejection of the bid of a bidder. In this case, the return of the collateral is carried out precisely in relation to of this participant... Note that the decision to reject the application must be recorded by the customer in the protocol, which is posted in the EIS (with open procurement methods) no later than the working day following the date of signing the protocol when conducting open competition 11, or no later than the date of consideration of applications for participation in the electronic auction 12. With closed procurement methods, the corresponding protocol is not placed in the EIS, but only targeted notification of participants about the decision is made. The situation is equated to the same situation when the participant is removed from participation in the auction or the customer refuses to conclude an agreement with him at any time before the conclusion of the contract due to the fact that the customer revealed that the participant in the auction provided in his application inaccurate information regarding his compliance with the established requirements or violated the rules for the supply of essential and essential drugs 13. We also point out that the legislation defines a special case when the rejection of an application by an electronic auction participant may, on the contrary, be the basis for refusing to return the application security to him (see below).
5. Withdrawal of the application by the procurement participant before the deadline for submission of applications. To do this, the procurement participant must send the customer or the operator of the electronic site a corresponding notification, and the date of receipt of this notification by the addressee will be considered the date of withdrawal. Note that if the addressee receives the notification after the deadline for submission of bids, then such a 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 bid - it will take place on other grounds and, therefore, at different times. In the notice of withdrawal of the application, it is recommended to separately draw the attention of the addressee to the need to return the security of the application (see, for example, a sample notification of the withdrawal of an application for participation in an open tender in the ATP Consultant Plus (Guide to contract system)).
6. Receipt of an application for participation in the auction after the deadline for submission of 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 send his application in this way (for example, by registered mail with notification) so that the date of receipt of the application can be documented, regardless of when it arrives to the customer.
7. Receipt by the customer of the decision of the body authorized to conduct control in the field of procurement on refusal to agree on the conclusion of a contract with a single supplier, and in the case of an electronic auction - receipt by the operator of the electronic platform from the customer of the specified decision, sent no later than the working day following the date of receipt by the customer the specified solution. Recall that in order to conclude a contract with a single tenderer as a sole supplier (except for certain cases), the customer must obtain approval from the Federal Antimonopoly Service or the executive body of the constituent entity of the Russian Federation (local government body) authorized to exercise control over procurement 16. If there is no such agreement, then the contract on the basis of the procurement is not concluded, and the bid security is returned to the procurement participant, with whom the customer was going to conclude a contract as the only participant. Note that the case of an electronic auction just now falls into the exceptions to this rule - as a result of it, no agreement is required in concluding a contract with a single supplier.

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

Let us also pay attention to the fact that the operator of the electronic site must return to the participant of the electronic auction not only the amount of the collateral itself, but also the income received by him from the placement of funds contributed as collateral for applications for the period of placing these funds on the account of the operator of the electronic site in the bank from the moment of blocking 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 platform operator uses an account opened with a bank under a bank deposit agreement for operations with collateral for applications. 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, interest should still be given to the procurement participant), use a simple bank account for these operations, where on the bank does not charge any interest on the deposited funds. Nevertheless, it is recommended that procurement participants still find out from the operator of the electronic platform which account he uses for operations with means of securing bids. 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 require the operator to transfer the corresponding amounts, and if he does not go 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 to the participants of the electronic auction the income received by the operator of the electronic site does not apply to those electronic sites that were selected before 44-FZ 20 came into force. These sites include: OJSC United Electronic Trading Platform (www.roseltorg.ru), CJSC MICEX-Information Technologies (www.ets-micex.ru), State Unitary Enterprise Agency for State Orders, Investment Activities and Interregional Relations Republic of Tatarstan ”(www.zakazrf.ru), CJSC“ Sberbank-Automated Trading System ”(www.sberbank-ast.ru), LLC“ Index Agency RTS ”(www.rts-tender.ru) 22.

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

In the event of a delay in the fulfillment by the customer or the operator of the electronic site of its obligations to timely return the funds or stop blocking them, the procurement participant, including the winner in the procurement, has the right to demand payment of penalties 23. Penalty is charged for each day of delay in the fulfillment of the obligation starting from the day following the expiration of the deadline for the fulfillment of the obligation established in accordance with this article, and is set in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation in effect on the date of payment of interest 24 of the amount not returned in time, or of the amount, the blocking of which should be terminated. And there are already 25 such precedents, when procurement participants collect interest from customers for the misuse of their funds.

It also provides for administrative responsibility. In particular, a violation of the terms for the return (unblocking) of funds contributed 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, which serves the operator's account 27, is jointly and severally liable together with the operator of the electronic site for the observance of the deadline for the return of the funds for securing the application.

Cases when the funds for securing the application are not returned to the procurement participant

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

1. A procurement participant recognized as a supplier (contractor, performer) refused or avoided concluding a contract. Note that here we are talking about the only bidder or winner of the bidding. If the contract is not signed by the bidder whose application has been assigned the second number, then this is not considered to be evasion from the conclusion of the contract 29. As for the electronic auction, the situation from a formal legal point of view is not very clear here: on the one hand, the legislation does not have the same norm as in relation to the tender (see above), and on the other hand, the procedure and terms for concluding a contract based on the results of the electronic auction and deadlines return of the application security admit the possibility that by the time the "first number" is recognized as having evaded the contract, the "second number" will have already been returned the application security, and if he also evades the contract, he must not "return" there will be nothing. However, given that the legislation allows the "second number" to refuse to conclude a contract 30, the issue of non-return of the application security is usually not raised in practice.
2. The procurement participant recognized as the winner of the procurement did not provide the customer or provided, in violation of the established conditions, the security for the execution of the contract 31.

Particular attention should be paid to the fact that the legislation defines a special case when, during an electronic auction, the operator of the electronic platform does not return the application security to the procurement participant whose application for participation in the auction was rejected 32. This happens if on one electronic site in relation to one procurement participant 3 times during one quarter, the auction commissions (one or more customers) decide that the second parts of his bids do not meet the requirements of the auction documentation 33 - in this case, the participant does not return the provision of the last of these 3 applications.

In simple terms, this rule is intended to punish those participants in the procurement who are dishonest and careless in the preparation of bids and, moreover, do it 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 on the account of the operator of the electronic platform and only after this period is transferred to the customer. This time is just given to the procurement participant in order to appeal the decision of the auction commission. Note that the practice of resolving disputes in the FAS and the court practice in this regard are very interesting.

Example

In the Vladimir region in May 2014, a procurement participant (an asphalt concrete plant) submitted 28 applications for participation in electronic auctions held in one day. regional administration... All 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 the procurement participant (the withheld amount was 750 thousand rubles). The plant went to court, believing that there was no sign of systematicity in its actions, since its applications were submitted at the same time and all of them had the same violations that 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.

Also, the concept of "quarter" is interpreted ambiguously. According to the Ministry of Economic Development of the Russian Federation, the quarter begins from the date the auction commission makes a decision on the discrepancy between the first application filed by such a participant 35, that is, for example, auction applications filed in December and January are considered submitted within one quarter. But in accordance with civil legislation, a quarter is considered equal to 3 months, and the 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 under no he will not be sanctioned. Note that in jurisprudence there is an interpretation of the concept of “quarter” that does not coincide with the interpretation of civil legislation - the court considers the auctions that took place in March and April as having taken place within 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 Federal law dated 05.04.2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs."

2 hours 14-15 art. 44 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

3 Art. 44 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

4 P. 5 h. 2 tbsp. 51 and paragraph 4 of part 2 of Art. 88 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

7 Part 28 Art. 44 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

8 Part 6 Art. 44 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the 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 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

10 Part 3 Art. 36 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

11 Part 12 Art. 53 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

12 Part 7 Art. 67 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

13 Hr. 9-10 st. 31 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

14 Art. 43 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

15 Part 6 Art. 51 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

16 P. 25 h. 1 art. 93 of the Federal Law dated 05.04.2013 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 dated 31.03.2015 No. 189 "On approval of the Procedure for agreeing 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 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

18 Part 8 Art. 44 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

20 Part 10 Art. 112 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the 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 05.25.2010 No. 8384-AP / D22 “On the procedure for holding open auctions in electronic form, the order of conclusion government contracts based on the results of open auctions in electronic form, the procedure for exercising control over operators of electronic platforms ”.

22 Letter of the Ministry of Economic Development of the Russian Federation, FAS RF, Treasury of Russia dated 05.25.2010 No. 8384-AP / D22 "On the procedure for holding open auctions in electronic form, the procedure for concluding government contracts based on the results of open auctions in electronic form, the procedure for exercising control over operators of electronic platforms" ...

23 Part 29 Art. 44 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the 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 where the refinancing rate of the Bank of Russia is used, the key rate of the Bank of Russia is used instead of the specified rate, unless otherwise provided by federal law (Resolution of the Government of the Russian Federation No. 1340 of 08.12.2015).

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

26 See Art. 7.31.1 Administrative Code.

27 Part 11 Art. 44 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

28 Part 13 of Art. 44 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

29 Part 6 Art. 54 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

30 Part 14 Art. 70 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the 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 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

32 Part 27 Art. 44 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

33. 6 tbsp. 69 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

With an initial contract price of more than 1 million rubles. the customer is obliged to establish a requirement to guarantee the proposal of the participant (part 1 of article 44 No. 44-FZ). If the amount is less than 1 million, the Ministry of Finance explained that the customer has the right to establish. The supplier can pay this amount either in the form of cash or in the form of a bank guarantee. From 01.10.2018, for these purposes, he needs to have it in the bank.

The reason for the return is one of the following events:

1. Signing of the final protocols. In this case, the money is returned to all participants, except for the one who received the first number. The return of the security of the application for participation in the competition under 44-ФЗ to the winner is made after the conclusion of the contract.
2. Denial of admission to bidding.
3. Revocation of documents by the participant before the deadline for the submission of proposals. In case of withdrawal of the application by the procurement participant before the deadline for submission of applications, the funds contributed as security for the application for participation in determining the supplier (contractor, executor) shall be returned to the account of the procurement participant during the tender and other tenders.
4. Withdrawal of the proposal after the publication of the final protocol by the participants who did not receive the first issue following the results of the electronic tender or the first three issues during the electronic auction.
5. Delayed submission of the proposal (after the end of the admission).
6. The customer's refusal to conclude a contract with the supplier if it became known that the latter did not meet the requirements of the documentation or when he submitted inaccurate information.
7. , which is concluded with a single supplier.

Note that the law does not provide for the return of bank guarantees, as well as penalties for them.

In what time frame will the money be returned

When we talk about the return of security for application 44-FZ (terms), Article 44 will help to understand this issue. The number of days here will depend on the type (paper or electronic).

So, when conducting offline contests (including those with limited participation and two-stage), as well as closed auctions, money is returned within 5 working days. However, non-electronic auctions will be prohibited from 01/01/2019. Exceptions to this rule will be only closed tenders, requests for quotations for humanitarian aid and others (part 44 of article 112 No. 44-FZ).

And in what time frame should the security of the application under 44-FZ be returned if the purchase is electronic? Here, the ETP operator has 1 working day to unblock funds on a special account and 1 hour to notify the authorized bank about it.

Consequently, the answer to the question: whether the security of the application for participation in the auction is returned will be positive.

In all cases, the days are counted from the moment one of the events that we described above occurs.

We add that after making a record about a participant in the law, it gives the operator of the ETP 1 working day to notify the bank about the evasion of such a participant from concluding a contract and about the amount of blocked funds.

We have figured out how to return the security of the application from the electronic platform - the operator must do it himself within the time frame established by law. But despite the clear rules, it will also be useful to send the customer a letter with the requirement to unblock the funds in connection with the occurrence of one of the above circumstances.

Example of a letter for refund of money deposited as a guarantee

When money is not returned

So, we have considered the terms for returning the security of the application for participation in the competition under 44-FZ. Now let's look at the options in which the money is not returned at all. This can include the evasion of the winner of the tender from the conclusion of the contract. A similar final also awaits the supplier with a missing or incorrectly drafted contract performance guarantee.

The amounts deposited in the form of bank guarantees will not be refunded. Penalties on them will also not be carried out (part 7 of article 44).

Blocking the amount in the amount of the application security (the application was rejected 3 times) - this situation is also possible. So, if in one quarter on one ETP a participant was rejected 3 times in the second parts, then the funds in question will not be returned to him (part 27 of article 44). In this case, the supplier has 30 days to appeal the customer's decision. After the expiration of this period, the bank, according to information from the ETP, transfers to the budget the money that was blocked on the special account.

A responsibility

Consider the dependence of securing the application -.

The operator of the ETP and the bank servicing it in terms of the funds in question are equally responsible if they violate the procedure for returning the security of the application 44-FZ (part 11 of article 44).

For failure to unblock or return the required amount, the supplier (including the winner) has the right to demand payment of penalties (part 29 of article 44).

In accordance with Art. 7.31.1 of the Code of Administrative Offenses of the Russian Federation, if the refund for the offer is delayed by no more than 3 working days, both officials (5,000 rubles) and legal (30,000 rubles) are subject to fines. With an increase in the term, the amount of the penalty increases to 15,000 and 90,000 rubles. respectively. And the increase in the return period by the operator of the ETP will cost him 15,000 rubles.

In the previous article, we talked about the types of security payments provided for by the contractual system (see ""). And in today's article we will talk about the methods of returning these payments, as well as the timing of the payment of the contract. In addition, you will learn what to do if the customer does not transfer money, and how to protect yourself from unscrupulous customers.

This money will be unlocked within one business day if one of the following events occurs:

• signing the final protocol of the electronic auction (money will be unlocked from all participants, except for the winner);
• cancellation of the purchase by the customer (money will be unblocked from all participants without exception);
• the participant's withdrawal of his application before the end of the period for their submission (the money will be unblocked after the participant sends a notification to the EIP operator).

It happens that a supplier has changed his mind to participate in an electronic auction, but did not withdraw his bid before the deadline for submission of bids. In such a situation, his payment will be unblocked only after the publication of the final protocol.

The winner's security deposit will be unlocked only after the conclusion of the contract.

Once unlocked, the vendor will be able to either use the money to participate in other trades, or return it to their bank account. To do this, you need to perform the actions provided for by the regulations of a particular ETP. For example, at the Sberbank-AST site, a participant needs to fill out an application for a refund in his personal account.

Please note: to work on trading floors and to participate in many types of trades, a special electronic signature is required.

Competition and closed auction

In tenders and closed auctions (see ""), the customer himself returns the security deposit to the participants. He must do this within five working days. It is better if the losing participant, just in case, writes a letter to the customer and asks to return the application security to a specific bank account.

If the application security is returned out of time

In a situation where the bid security is returned with a delay, the bidder may demand from the customer or the ETP a penalty in the amount of 1/300 of the amount not returned for each day of delay. In addition, for customers and operators of electronic trading platforms who violated the deadline for returning the security, an administrative fine is provided under article 7.31.1 of the Administrative Code of the Russian Federation.

Securing a contract

The period within which the customer must return the security for the contract is not regulated by law. This term is set by the customer himself. You can find out the deadline in the draft contract posted in the United information system(EIS) among other government procurement documentation. If there is no information on the term in the project, the supplier has the right to submit a request for clarification. There is another possibility - to complain to the Federal Antimonopoly Service about the violation by the customer of part 27 of article of the Federal Law dated 05.04.13 No. 44-FZ "On the contract system in the field of procurement of goods, works, services for state and municipal needs" (it contains the requirement to indicate in the contract the term for the return of collateral).

Unfortunately, even if the term is prescribed in the contract, customers in practice often violate it and are in no hurry to return the security deposit to the supplier. In such circumstances, the supplier should write a claim demanding a refund. Also, the supplier has the right to claim interest, which is calculated for each day of delay based on the key refinancing rate (Article of the Civil Code of the Russian Federation). If the customer ignores the claim, the bidder can go to court.

Sometimes, for some reason, the customer and the first place winner do not sign the contract within 30 days after the winner is announced. In this case, the purchase is declared invalid, and the security deposit must be returned within five working days.

Payment for the contract

For government purchases made under Law No. 44-FZ, the contract payment deadline is 30 calendar days from the date the customer signs the acceptance document. For small businesses and socially oriented non-profit organizations the contract payment term is 15 working days. If the purchase is made within the framework of the Federal Law of 18.07.11 No. 223-FZ "On the procurement of goods, works, services separate types legal entities»The term of payment of the contract is set by the customer himself. The basis for payment here is also the act of acceptance of goods or performance of work (rendering of services) signed by the customer.

What to do if the contract is executed in full, acceptance certificates have been signed, but there is no money from the customer? First of all, the supplier needs to write a claim and send it by registered mail to the customer's address. Copies of the contract, signed acceptance certificates and a reconciliation report with the customer should be attached to the claim.

An unanswered claim is a reason to go to arbitration. You don't have to appear in court in person to file a claim. Just go to the site arbitration court your area, register in your personal account, select the type of statement of claim and attach to it required documents v in electronic format... The limitation period is three years.

Note that you can take a number of measures in advance to protect yourself from unscrupulous customers. First, it is better to check the customer before submitting the application. Practice shows that, as a rule, several arbitration claims have been filed against “malicious defaulters”.

Information, check the counterparty for good faith, can be obtained from special services- for example, in "Contour.Focus" (see ""). There you can see arbitration cases in which the customer acted as a defendant, enforcement proceedings initiated against the customer, check it for signs of a fly-by-night firm, and obtain information about previously concluded contracts.

Secondly, you need to pay attention to whether the terms of acceptance of goods, quality examination and signing of the acceptance certificate are spelled out in the contract. If no specific terms are specified, the customer can postpone the quality examination as long as he wants, thereby delaying the signing of the act and the payment of the contract. Obviously, there is no need to work with such a customer.

In order not to miss the placement of information about the desired purchase, you can connect the service "Contour.Procurement". In this service, the supplier (contractor, performer) can customize the templates of requests for all tenders for “their” goods (works, services). After that, the supplier will promptly receive on email notifications that a purchase of interest has appeared on a particular site. Such a tool will save the supplier from the need to constantly monitor information and will allow him to quickly respond to purchases that are of interest to him.

The procedure for blocking or unblocking funds in the amount of security for applications for participation is regulated by Art. 44 of Federal Law No. 44-FZ.

Blocking of funds in the amount of bids security - within 1 hour from the date and time of the deadline for submitting bids for participation in the procurement (part 20 of article 44).

Unlocking the order collateral

The application was withdrawn by the Participant - within 1 business day from the date of receipt of the notification of the withdrawal of the specified application (part 21 of article 44);

Refusal to the Procurement Participant in admission to participate in an open tender in electronic form, a tender with limited participation in an electronic form, a two-stage tender in an electronic form, an electronic auction - within 1 (one) business day following the date of receipt of the protocol of consideration of applications / minutes by the Operator consideration and evaluation of applications (clause 22 of article 44);

The participant of the electronic auction did not take part in the auction - within 1 (one) business day from the date of posting the minutes of the auction on the Electronic platform (clause 23 of article 44);

An application for participation in an open tender in an electronic form, a tender with limited participation in an electronic form, a two-stage tender in an electronic form, an electronic auction is recognized as not meeting the requirements of the procurement documentation - within 1 (one) business day from the date of posting on the Electronic Site of the protocol summing up (part 24 of article 44);

Unlocking the funds of the Participants not recognized as Winners based on the results of the summarizing protocol - within no more than 1 (one) business day from the date of publication of the summarizing protocol (clause 1, part 8, article 44);

Cancellation of the supplier's determination - within 1 (one) business day from the date of receipt of information on the cancellation of the supplier's determination (clause 2, part 8, article 44);

Unlocking the funds of the Participant recognized as the Winner based on the results of the summarizing protocol - within 1 (one) business day from the date of placement in the unified information system of the signed draft contract (clause 1, part 8, article 44).

In accordance with Part 27 of Art. 44 in the event that, within one quarter, on one electronic site in relation to the second parts of three bids 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, filed by one participant in such purchases , the procurement commission made decisions on the non-compliance of these applications with the requirements, the Operator of the electronic platform, after 30 (thirty) days from the date of the last of these decisions, transfers to the Customer the funds contributed by this Participant as security for the last application to the account specified by the Customer.

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A selection of the most important documents on request Return of the application security(regulations, forms, articles, expert advice and much more).

Normative acts: Return of order security

8. The funds contributed as security for the application for participation in a tender or auction are returned to the account of the procurement participant during an open tender, a tender with limited participation, a two-stage tender, closed methods for determining suppliers (contractors, performers) within no more than five working days, and when holding 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 blocking of funds on a special account of a procurement participant, carried out in accordance with part 20 of this article within no more than than one business day from the date of occurrence of one of the following cases:

Article 7.31.1. Violation of the procedure and (or) the terms for the return of funds contributed as security for applications for participation in determining the supplier (contractor, executor), the procedure and (or) the terms for blocking transactions on the account of the procurement participant, the procedure for maintaining the register of electronic auction participants who received accreditation for electronic site, the rules of document flow during an electronic auction, disclosure by the operator of the electronic site, an official of the operator of the electronic site information about the procurement participant before summing up the results of the electronic auction

Articles, comments, answers to questions: Return of order security

Recommendation. In addition to job description(regulations) it is advisable for the customer to develop documents defining the procedure for interaction of the contract manager with other employees and structural units that are involved in certain processes in the implementation of procurement, for example, with accounting (on the receipt of funds to secure applications and their return, payment of contracts).

Open a document in your system ConsultantPlus:
The deposit of funds as security for the application for participation in the procurement and their return do not entail any tax consequences for VAT. This is due to the fact that these funds are not associated with the sale of goods (works, services), property rights. Consequently, there is no object of VAT taxation provided for in paragraphs. 1 p. 1 of Art. 146 of the Tax Code of the Russian Federation.