Return of the application security if the decision is positive. Refund of a bank guarantee securing the application. Example of a letter for the return of application security

If a procurement participant under a government contract contributed funds as security for the application and did not commit any violations, then they are required to return the money.

This should do:

• or the customer;
• or an operator of an electronic platform.

Grounds for returning application security

The participant has the right to demand the return of the application security if he has not committed any violations.

The grounds on which the customer can withhold funds depend on whether the participant is a winner or not.

Memo for the lawyer of the company participating in the procurement

• Government procurement without errors. How to make the right application

The procurement participant did not become the winner

The procurement participant loses the right to return the security for every third application if, within one quarter (Part 27 of Article 44 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”):

• he took part in an electronic auction, and
• the customer admitted that the second parts of three participant applications on one electronic platform do not meet the documentation requirements (clause 1, part 6, article 69 of Law No. 44-FZ).

The exception is cases when the antimonopoly authority or the court, following a participant’s complaint, found the customer’s decision to be unfounded.

In this case, a quarter does not mean a calendar quarter, but three months. The period begins to run from the moment the auction commission rejects the first application ().

The participant became the winner of the purchase

The winner has no right to demand the return of the application security if he:

• avoided or refused to enter into a contract;
• failed to provide security for the execution of the contract or provided it in violation of the requirements of Law No. 44-FZ.

This follows from Part 13 of Article 44 of Law No. 44-FZ.

Who should return the bid security to the procurement participant?

Either the customer or the operator of the electronic platform must return the security.

Thus, a participant has the right to demand the return of security from the customer if he took part in a competition or closed auction.

If a person participated in an electronic auction, then the operator of the electronic site must return the security. To do this, he stops blocking funds in the participant’s personal account.

Application security return period

The legislator has established a period during which the funds must return to the participant’s possession.

Only after this period has expired will it be possible to contact the customer (operator of the electronic platform) with a claim (claim) for the return of the security amount and payment of sanctions.

The period depends on who returns the money:

• if the customer is a customer, then he has five working days to return the money to the participant’s account;
• if the operator of an electronic platform - one business day to unblock the funds.

The moment at which this period begins to run depends on whether the participant has become a winner or not.

The participant did not win the purchase

The return period is calculated from the moment when one of the events occurs:

• the customer signed the protocol for determining the winner (clause 1, part 6, article 44 of Law No. 44-FZ);
• the customer canceled the procedure for identifying a supplier (clause 2, part 6, article 44 of Law No. 44-FZ);
• the customer rejected the participant’s application (clause 3, part 6, article 44 of Law No. 44-FZ);
• the participant withdrew the application before the deadline for submitting applications (clause 4, part 6, article 44 of Law No. 44-FZ);
• the participant submitted an application to participate in determining the supplier after the deadline for submitting applications had expired (clause 5, part 6, article 44 of Law No. 44-FZ);
• the customer removed the procurement participant from determining the supplier or refused to conclude the contract to the winner under parts 9 and 10 of Article 31 of Law No. 44-FZ (Clause 6, Part 6, Article 44 of Law No. 44-FZ). For example, the customer may refuse if the procurement participant did not provide or provided false information that he meets the requirements for procurement participants;
• The procurement control body refused to approve the customer's contract with a single supplier (clause 7, part 6, article 44 of Law No. 44-FZ).

For an electronic auction, the law provides three additional grounds for the operator to stop blocking funds:

• the participant submitted an application that was not signed with an enhanced electronic signature (clause 1, part 11, article 66 of Law No. 44-FZ);
• the participant submitted two or more applications for participation in the auction, but did not withdraw previously submitted similar applications (clause 2, part 11, article 66 of Law No. 44-FZ);
• the participant submitted an application to participate in the auction less than three months before his accreditation on the electronic platform was due to expire (clause 4, part 11, article 66 of Law No. 44-FZ).
• the participant submitted the application after the date or time of the deadline for submitting applications (clause 3, part 11, article 66 of Law No. 44-FZ).

The procurement participant won

The obligation to return funds in this case arises after the customer and the winner sign the contract. This means that the period must be counted from the moment the contract is concluded (clause 1, part 6, article 44 of Law No. 44-FZ).

Additional payments upon return of application security

The participant has the right to demand from the operator of the electronic platform payment of the income that he received from placing the blocked amount of security. The operator calculates the amount of income from the moment the security amount is blocked until the blocking is lifted.

This rule is established by Part 8 of Article 44 of Law No. 44-FZ.

If the customer and the operator of the electronic platform do not timely return (unblock) the amount of the application security, then the participant has the right to demand that they pay penalties. Such a penalty is charged for each day of delay in the amount of 1/300 of the Bank of Russia refinancing rate in effect on the date of payment of the penalty (Part 29, Article 44 of Law No. 44-FZ).

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Bid security is a guarantee that the supplier will sign a contract on the customer’s terms. The type of security depends on the procurement method:

• In an electronic auction, the ETP blocks the required amount on the account in the participant’s personal account.
• In a competition or closed auction, the participant himself chooses the method of security: deposit money into the customer’s account or provide a bank guarantee.

The amount of the application security depends on the terms of the specific purchase and the customer’s requirements. The amount will be no less than 0.5% and no more than 5% of the initial minimum price. The amount blocked on the ETP or transferred to the customer is “real money”, which any participant is interested in returning as quickly as possible. Let's see what rules on this matter are in 44-FZ.

Money in a special account

Since October 1, 2018, in electronic procurement, applications are secured using the special invoice mechanism. money is blocked for an hour after the acceptance of applications has ended. Upon request from the ETP, the bank is obliged to unblock money in the participant’s special account within 1 business day in these cases:

1. The participant's application was rejected.
2. The final e-procurement protocol was signed. Money will be unlocked for everyone who lost.

If you are the only participant or only your application meets the requirements, then the auction will be declared invalid and the customer will have to enter into a contract with you. If you refuse, you will lose your security and end up in the RNP.

The winner will receive the security back as soon as he enters into a contract with the customer. The contract can be signed no earlier than 10 days (7 days in quotes) after publication of the final protocol in the Unified Information System.

After the money in the special account is unblocked, the participant can use it in other purchases.

Money from the customer

This rule applies only to paper procedures. The customer must transfer the money back to the competition participant. If you lose, you can, just in case, send a letter to the customer asking for the return of the application security and the bank account number. The customer must return the money to the participant’s account within 5 working days.

Responsibility of the customer and the bank

If the customer or bank does not return the security on time, the participant has the right to demand a penalty. The penalty is 1/300 of the non-returned amount and is charged for each day of delay. There are precedents when participants, through the courts, collect interest from customers for the use of their money.

There is also administrative liability - a fine from 5 to 90 thousand rubles.

Return of contract security

The amount of security ranges from 5% to 30% of the NMC specified in the procurement documents. If the NMC exceeds 50 million rubles, the customer is obliged to increase the bar - from 10% to 30% of the NMC, but not less than the advance amount (if it is provided for in the contract). If the advance is more than 30% of the NMC, the amount of security is equal to the advance. The contract can be secured by transferring money to the customer’s account or by a bank guarantee.

The customer himself sets the deadline for returning the “cash” security. When submitting an application, look at the draft contract to see if it suits you. If the customer has not set a deadline, submit a request for clarification. If this does not help, complain to the FAS about the procurement documentation (Part 27, Article 34 of the 44-FZ).

It happens that the customer violates the terms of return: the contract has already been closed, but the customer has not returned the security. If you secured the contract with real money, write a claim demanding a refund. You also have the right to demand interest for their use (Article 395 of the Civil Code of the Russian Federation and Article 317.1 of the Civil Code of the Russian Federation).

If the customer does not respond, go to court. The customer bears administrative and, in some cases, criminal liability for this violation (Article 107 44-FZ).

If for some reason the contract is not signed within 30 days after the winner is announced, the purchase is considered invalid. In this case, the money that the winner contributed as security must be returned within 5 working days.

What to do if the customer does not pay for the contract

The basis for payment is the acts of acceptance of goods or work performed signed by the customer. For small businesses, the deadline is established by law: no later than 15 working days from the date of signing the acceptance certificate, for other categories of business - no more than 30 calendar days.

If the contract is executed without complaints, the acceptance certificates are signed, but there is no money and negotiations with the customer do not bring results, the first step is to write a claim to him. It is better to send it by registered mail. Please attach copies of the following to your claim:

• contract,
• Certificates of completed work signed by the customer,
• Reconciliation report with the customer.

If the customer does not respond to the claim within the time limit you set, go to arbitration. You can file a claim through the website of the arbitration court in your area:

• Register in your personal account,
• Select the type of claim,
• Attach the required electronic documents to the claim. Requirements for documents are on the website.

The period for filing a claim is 3 years. This means that you can go to court even if the contract is formally completed. For example, it contains the wording that the agreement is “valid until December 31, 2016,” etc.

How to reduce risks?

First, pay attention to whether the contract has specific deadlines within which:

• The customer accepts the goods and conducts a quality examination,
• Signs certificates of completed work,
• Transfers money to the contractor after signing the act.

If you are not specific, you may fall into a trap. For example, the customer will postpone the examination of the quality of an already delivered product because “there is no necessary specialist” or “there are no conditions for conducting the examination.”

Secondly, check the customer before submitting an application. Chronic defaulters usually have several arbitration claims. If the customer pays for the executed contract only after the trial, think about whether it is worth participating in the procurement.

Application security under 44-FZ is the amount of money that the procurement participant transfers to the other party as evidence of the conclusion of the contract as a result of identifying a supplier. The actual receipt of funds into the bank account is a deposit and forms security for the application under 44-FZ. The definition of a deposit is given in Article 380 of the Civil Code.

The peculiarity of the application security under 44-FZ is that it is not counted against other payments under the contract and is subject to either return or withholding.

The mechanism for securing applications is described in Article 44 of Federal Law 44-FZ.

When the application security under 44-FZ is lost

The application security under 44-FZ is withheld and its return is not carried out if:

• The participant refused to conclude a contract with the customer or avoided concluding a contract
• The participant did not provide contract security before concluding the contract or provided it in violation of the terms
• A participant in an electronic auction was rejected 3 times for the second parts of applications during the 1st quarter on 1 electronic platform

In all other cases, the application security under 44-FZ is returned in full.

The winner of the selection of supplier (contractor, performer) will receive the application security back after the conclusion of the contract.

Amount of application security under 44-FZ

The amount of application security under 44-FZ is 0.5% - 5%. The application security under 44-FZ is calculated as a percentage of the initial (maximum) contract price.

The security for an application under 44-FZ for an electronic auction with a starting price of up to 3 million rubles is equal to 1%.

Preferential conditions are established for purchases from small businesses (SMBs). Securing an application for SMP under 44-FZ no more than 2%. The customer independently determines the security of the application under 44-FZ. The size is set in rubles and is indicated in the procurement documentation.

When conducting an electronic auction, the Customer must establish requirements for securing the application. Unlike a competition and a closed auction, at an electronic auction in accordance with Parts 1, 2 of Art. 44 of Law No. 44-FZ, securing an application is possible only in the form of cash. The bidder transfers this money to the account of the site where the auction is taking place.

Return of a bank guarantee to secure an application

For competitions and closed auctions, it is possible to provide security for participation with a bank guarantee: . Refunds and collections under a bank guarantee are not made (Part 7, Article 44 of Law No. 44-FZ).

The minimum cost of a bank guarantee is about 2,500 rubles. And since the amount of security for the application is only from 0.5% to 5%, it is more profitable for the participant to provide security with a bank guarantee instead of his own funds.

Return of application security under 44-FZ

The bid security is returned to the winning bidder only after a contract is concluded with him. To all other tender participants, the security is returned within the period established by the ETP regulations before the conclusion of the contract in the event of a winner, as well as in case of cancellation of the determination of the supplier, contractor or contractor, in case of cancellation of the application by the participant before the agreed deadline for submitting applications, in case of rejection of the application, upon receipt of the application for participation in the procedure for determining the contractor after the deadline for submitting applications and in a number of other cases.

Terms for returning the application security to the auction winner

The winner of an auction or competition cannot return the security until the contract is concluded; it is a kind of insurance, a guarantee that the contract will be signed. Thus, the return of funds transferred to the Customer as security for participation is carried out in accordance with the conditions established by the Customer in the auction documentation.

If the winner avoids concluding a contract or does not provide security for its execution on time, then the security for participation is not returned, and the winner himself may end up in the RNP for 3 years, and, accordingly, lose the right to participate in the auction. However, it is worth keeping in mind that there are legal procedures that allow you to delay the provision of security: . The main thing is to take care of enforcement in time and contact a reliable supplier.

In what cases the money for securing the application will not be returned?

To an auction participant, if he was rejected in the second parts of the application three times in a quarter on one ETP, the security for the application for participation in the tender will not be returned.

Also, if the participant is recognized as the winner and refuses to conclude the contract, or if security for the execution of the contract is not provided, the participant is recognized as having evaded signing the contract and in this case, the funds provided as security for participation will not be returned.

If you participate in a competition or closed auction, it is recommended to issue a bank guarantee for - Gosgarant to help.

In the previous article we talked about the types of security payments provided for by the contract system (see “”). And in today’s material we will talk about ways to return these payments, as well as the terms of payment for 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 released from all participants except the winner);
• cancellation of the purchase by the customer (money will be unblocked for all participants without exception);
• withdrawal of the application by the participant before the deadline for submission (the money will be released after the participant sends a notification to the EIP operator).

It happens that a supplier changes his mind about participating in an electronic auction, but does not withdraw his application before the deadline for submitting applications. In such a situation, his payment will be unblocked only after the publication of the final protocol.

The winner's security payment will only be released after the contract has been concluded.

Once unlocked, the supplier can either use the money to participate in other auctions 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, on the Sberbank-AST site, a participant needs to fill out a return application in his personal account.

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

Competition and closed auction

In competitions and closed auctions (see “”), the security payment to the participants is returned by the customer himself. 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 not returned on time

In a situation where the application security is returned late, the bidder may demand from the customer or ETP a penalty in the amount of 1/300 of the unreturned amount for each day of delay. In addition, for customers and operators of electronic trading platforms who violate the deadline for returning collateral, an administrative fine is provided under Article 7.31.1 of the Code of Administrative Offenses of the Russian Federation.

Contract security

The period within which the customer must return the contract security is not regulated by law. This deadline is set by the customer himself. You can find out the deadline in the draft contract posted in the Unified Information System (UIS) among other government procurement documentation. If there is no information about the deadline 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 customer’s violation of Part 27 of Article of the Federal Law of 04/05/13 No. 44-FZ “On the contract system in the field of procurement of goods, works, services for state and municipal needs” (it enshrines the requirement to indicate in the contract there is a deadline for the return of security).

Unfortunately, even if the deadline is specified in the contract, customers in practice often violate it and are in no hurry to return the security payment to the supplier. In such circumstances, the supplier should write a claim demanding a refund. The supplier also 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 may 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 considered invalid, and the security payment must be returned within five working days.

Payment for the contract

For government purchases made within the framework of Law No. 44-FZ, the contract payment period 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 period is 15 working days. If the purchase is made within the framework of the Federal Law of July 18, 2011 No. 223-FZ “On the procurement of goods, works, services by certain types of legal entities,” the contract payment deadline is set by the customer himself. The basis for payment here is also the act of acceptance of goods or performance of work (rendering services) signed by the customer.

What to do if the contract has been completed in full, the 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. The claim should be accompanied by copies of the contract, signed acceptance certificates and a reconciliation report with the customer.

A claim that remains unanswered is a reason to go to arbitration. You do not have to appear in court in person to file a claim. It is enough to go to the website of the arbitration court of your region, register in your personal account, select the type of statement of claim and attach the necessary documents to it in electronic form. The statute of limitations is three years.

Please note that you can take a number of measures in advance to protect yourself from unscrupulous customers. Firstly, it is better to check the customer before submitting an application. Practice shows that, as a rule, several arbitration claims are filed against “willful defaulters”.

Information to check the integrity of the counterparty can be obtained in special services - for example, in “Kontur.Focus” (see “”). There you can see arbitration cases in which the customer was a defendant, enforcement proceedings initiated against the customer, check it for signs of a fly-by-night company, and obtain information about previously concluded contracts.

Secondly, you need to pay attention to whether the contract specifies the terms for accepting the goods, conducting a quality examination and signing the acceptance certificate. If specific deadlines are not specified, the customer can postpone the quality examination for as long as he likes, thereby delaying the signing of the act and payment of the contract. Obviously, there is no need to work with such a customer.

In order not to miss posting information about the required purchase, you can connect the “Contour.Purchases” service. In this service, the supplier (contractor, performer) can set up request templates for all tenders for “their” goods (works, services). After this, the supplier will promptly receive email notifications that a purchase of interest has appeared on a particular site. Such a tool will relieve the supplier of the need to constantly monitor information and allow him to quickly respond to purchases that are interesting to him.