The procedure for returning security for the execution of a state contract established in Federal Law 44-FZ

If the security under 44-FZ is a bank guarantee

It is important to immediately stipulate that return of collateral is possible only if funds are provided. If the contract was secured by a bank guarantee, then its return is impossible, except in cases where the Beneficiary (Customer) himself, for some reason, carries out the procedure for returning the guarantee. Such cases are extremely rare and are caused by special circumstances. Possible options for terminating the warranty are described in Art. 378 ch. 23 of the Civil Code of the Russian Federation and in this article we will not dwell on them.

Explanations on the topic

Replacement of collateral

Return of collateral due to its replacement occurs, for example, in the case when funds are replaced by a bank guarantee. This action is, of course, extremely favorable for the contractor due to the fact that by providing a guarantee, he frees up funds that, while with the customer, do not generate income. It is important to note that in this case the customer has the right, and not the obligation, to carry out the procedure for replacing the collateral. If the customer decides to replace, he is first provided with a bank guarantee and after the customer accepts it, he returns the security previously provided in the form of cash.

Submit a request Replacement of collateral under a contract

Amount of contract security under 44-FZ for SMP and return procedure.

The amount of monetary security is indicated on the EIS website page. It is installed by the Customer in the range:

Security for the execution of the contract can also be presented in the form of a guarantee from the bank or funds transferred to the customer’s account.
The winning contestant chooses the method independently. In order to receive a bank guarantee, the contestant should contact the bank, fill out all the necessary documents, or you can contact our company, which also provides services for providing a bank guarantee.

The transfer of funds to deposits is carried out by the Contractor independently immediately before signing the transaction itself. Details can be taken from the Customer page, since the latter is not obliged to issue an invoice for payment.

If the participant does not provide security within the appointed time, he will be recognized as having evaded signing the agreement.

Return procedure

The funds are returned to the Contractor's account in full after the latter fulfills all obligations under the concluded contract within the framework of 44 Federal Law.

The bank guarantee is non-refundable as it is for the duration of the contract plus 1 month. After its expiration, it simply loses its power.

Return procedure

So, in case of fulfillment of the contract or its termination, there is a need for a refund. In this case, the conditions for the return of collateral must be provided for in the text of the state or municipal contract itself. Law 44-FZ does not regulate this issue, leaving it at the discretion of the customer. The customer must provide a letter for the return of security.

Federal Law 44 does not regulate the terms for the return of contract security. This procedure must be provided for in the contract

When?

From July 1, 2019, the deadline for returning contract performance security under 44-FZ is no more than 30 days from the date the supplier fulfills its obligations. If the purchase was carried out with a restriction for small businesses under Art. 30 44-FZ, then no more than 15 days. This is enshrined in Part 27 of Art. 34 laws on the contract system. An indication of the period by which it must be returned under the contract must be specified in the draft contract. The absence of this clause in the government contract is a violation of Part 27 of Art. 34 44-FZ. For this, the customer faces administrative liability under Part 4.2 of Art. 7.30 Code of Administrative Offences.

If you are terminating the transaction by agreement of the parties and the deadline for returning the security payment upon termination of the contract has not been specified, then return it within the deadlines that are fixed for return upon full fulfillment of obligations. This period is counted from the date of termination.

If this period is not established in the government contract, then you will receive the money within 7 days from the date on which you sent a request to return the money. If not requested, it will be returned within a reasonable time. This conclusion follows from paragraph 2 of Art. 314 Civil Code.

It turns out that the deadline is tied only to the terms of execution of the government contract, and not to the calendar year, so here’s what to do if you forgot to return the contract security at the end of the year - return it according to the general rules.

Storage rules

The period of storage of documents by legal entities is regulated by regulations of the Russian Federation. In accordance with Order No. 558 of the Ministry of Culture of the Russian Federation dated August 25, 2010, correspondence about mutual settlements between organizations must be kept for 5 years after all payments between organizations have been made in full. The safety of the letter on the return of security for the transaction must be ensured by both the customer and the contractor or the company that lost the auction. This document confirms the validity of the financial transactions of a legal entity, and therefore may be the subject of audits by the tax service.

In addition, the activities of participants in auctions and trades are controlled by the Federal Antimonopoly Service. For this reason, it is advisable to keep letters on the return of security amounts for 5 years after the completion of inspections of the relevant transactions by regulatory authorities.

If the company is liquidated before the expiration of the reporting documentation period, all letters regarding the return of funds must be transferred to the state archive.

Legal regulation

To participate in a competition for concluding a contract, legal entities must provide the organizer with evidence of proper fulfillment of their obligations under the transaction. The collateral is the sums of money listed in the form of:

• collateral;
• initial payment for participation in the auction;
• deposit to the customer's account;
• bank guarantee.

The requirement to pay a security deposit allows you to:

• exclude shell companies from the competition;
• ensure that the contractor fulfills all customer requirements;
• exclude from participation companies that do not have funds in their accounts.

Amounts confirming the intention to fulfill obligations can be transferred for participation:

• in the competition;
• in trading;
• in tenders;
• in auctions.

The specific amount of funds is indicated by the organizer of the competition or auction in the notice of their holding. The legislation of the Russian Federation establishes maximum amounts for securing an obligation. For example, when announcing tenders under Federal Law No. 44, the size of participants’ contributions can vary from 5 to 30% of the contract price. If the trading amount is more than 50 million rubles, the range of the required payment is from 10 to 30%.

The following have the right to a refund of the amount guaranteeing the fulfillment of obligations under the contract:

• companies that did not win the right to enter into a contract;
• the winner with whom the contract is signed.

If the bidder's proposal is not supported by the customer, a demand for the return of security may be sent immediately after the announcement of the winner.

The transfer of funds as a guarantee of the execution of the contract must be made according to the details specified in the notice of the competition. To prove the transfer of funds, a payment order with a bank mark or a bank guarantee form is attached to the tender documentation.

In order for the amount of the deposit to be returned to the counterparty chosen by the contractor under the contract, he must fulfill all obligations. If the contract provides for a warranty period for goods produced or services performed, the security amount can be returned only after the expiration of this period.

Return of contract security

Did you provide security to participate in the auction? You became the winner of a purchase, but you were found to have evaded concluding a contract and are not returning the security? How is contract security returned? What is the basis for returning security?

Currently, relations based on the law on the contract system are actively developing. An increasing number of legal entities are seeking to participate in a certain type of procurement.

What is contract security?

Tenders for government procurement provide almost every organization with a unique opportunity to conclude a lucrative contract.

However, submitting an application to participate in the competition is not so simple, since the potential supplier or contractor at this stage must confirm the seriousness of their intentions.

It is for this purpose that a special requirement was invented - the provision of security for a competitive tender application.

The placement of a government order can be carried out in the form of a competition or auction.

The difference between them is that during the tender process the customer chooses the contractor who offers the best conditions, while the company that offers the lowest prices wins the auction. Security for the application must be provided to the customer in both cases.

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How much do you need to pay to participate in the tender?

Typically, 5% of the contract value is required as a deposit - this is how the amount of security for the application is determined.

However, it should be understood that each customer sets its own rules for participating in the auction, including the amount of security, which in some cases may be reduced.

In any case, the specified amount acts as a kind of guarantee of a serious and conscientious attitude to the performance of one’s duties.

The tender participant is offered a choice: he can contribute money as security for the contract under 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” dated 04/05/2013 from his own budget or take out a special loan for these purposes.

This solution is proposed due to the fact that the organization does not always have the opportunity to use its own funds, especially when it comes to a large contract.

Therefore, much more often, an enterprise chooses the second option and turns to banking and credit organizations in order to take out a loan to secure an application in a tender.

In this case, the validity period of the bank guarantee provided as security for the application must be at least two months from the date of registration of the application. This type of loan differs from similar ones in its simplified procedure and speed of processing.

How is contract security returned?

So, to participate in the auction, among other mandatory elements, a person must provide cash security established by the customer. The security is returned if the procurement participant is not the winner. For the winning bidder who has entered into a contract, the agreement includes a condition on the timing of the return of funds contributed as security.

According to the general rule of 44-FZ, if the winning procurement participant is found to have evaded concluding a contract, the funds contributed as security will not be returned. But the possibility of return exists and, as a rule, only through the court:

1. Initially, you need to contact the customer with a demand for the return of funds contributed as security with the necessary justification for your claim.
2. After receiving a refusal, you must defend your case in court.

The established judicial practice follows such a legal path that applications submitted as security for participation in tenders are not returned only in the case when the winner of the procurement evades (has the direct intention) of concluding a contract.

ATTENTION : we will help you challenge the inclusion of unscrupulous suppliers in the register in order to return the security and not lose your reputation in the market for goods or services.

It would be incorrect to perceive the application security as a payment for participation in the auction, since after the completion of the competition the application security is returned to the winner and other participants. The specified amount is transferred to accounts within 5 working days after the decision to select the winner is made final, in cases where:

• the participant withdrew his application on time;
• the customer refused to hold the competition;
• the participant submitted the application after the reception had already ended;
• an application for participation in the competition was submitted by only one participant;
• the participant was declared the winner of the competition or was not admitted to it at all.

However, in some situations, the security may be withheld, and therefore many entrepreneurs are interested in in what cases the application security is not returned? This is possible if the winner of the competition or the only participant avoids concluding a contract.