Article 44 of the Federal Law No. 44-FZ with comments and amendments

FZ No. 44 regulates relations aimed at securing municipal and state needs to improve the efficiency of procurement, transparency and transparency, prevention of corruption and other abuses. The normative act regulates activities related to transaction planning, the identification of contractors, suppliers, executors, conclusion of contracts and the implementation of their terms. The provision of applications for the organization of auctions and competitions is regulated by Article 44 of the Federal Law-44. Comments on the norm can be found below.

Explanations of additions and adjustments to the norm

In the current (current in 2016) edition of the law, Article 44 contains the amendments made to it in 2013-2014. In 2015-2016 years. Additions to the norm in question were not included, and it was not subjected to adjustments. Article 44 44-FZ as amended from 2013-2014 Is current and is present in a revised form in the latest edition of July 3, 2016. Meanwhile, in other provisions of the normative act, there are additions introduced in 2015-2016.

Features of the security

In the process of holding auctions / competitions, Article 44 of the Federal Law-44 orders the customer to establish a requirement to secure applications. The documentation should indicate its size and the terms of the bank's guarantee (if such a method is applied in accordance with the regulatory act in question). Providing an application in a closed auction or in a tender can be provided by making a participant money or a bank guarantee. The method is chosen by the subject himself. Provision of applications for participants in electronic auctions is provided solely by the deposit of funds. The bank guarantee should not contradict the requirements of art. 45 of Federal Law No. 44. Its validity period is set at least 2 months. From the closing date for the submission of applications. Requirements for participation in the definition of the contractor, the supplier, equally apply to all participants in the procurement.

An Important Moment

If the participant included in the application the confirmation of the deposit as security and prior to the day of consideration and verification of the applications, they did not enter the account specified by the customer, which takes financial transactions into account, it is considered not to provide a guarantee. This rule does not apply when organizing an electronic auction.

Refund of collateral

Article 44 44-FZ establishes cases in which funds provided by a participant as guarantees are transferred back to it, or they are released from blocking (during auctions on electronic platforms). The terms of the return of collateral are also determined in the norm. In accordance with Art. 44 FZ-44 "On the contractual system in the field of procurement", a reverse transfer of funds or the cancellation of a lock is carried out:

1. When signing the protocol for review and verification of applications, their second parts for participation in a closed / electronic auction. The refund or termination of the lock is performed in respect of the funds of all participants, except for the winner of the procedure for determining the contractor / supplier / contractor. The reverse transfer is made to him after signing the contract. This clause was introduced in the edition of 01/01/2014.
2. Cancel the definition of the contractor, supplier or contractor.
3. A rejection of the participant's application.
4. Elimination of the subject from the definition of the supplier, contractor or contractor or refusal to sign a contract with the winner in accordance with the provisions of Part 9 and 10 Art. 44 44-FZ "On the contract system."
5. A request for an application before the deadline for its submission, or its receipt after its completion.

In addition, Federal Law No. 140 of 4 June 2014 introduced an item indicating another reason for the return of funds. It is implemented when the customer receives a decision from the control body to refuse to agree on the conclusion of a contract with a single contractor, contractor or supplier. Article 44 of the Federal Law-44 specifies that the funds should be transferred not later than five days. The lock is unlocked within 1 business day. In the event of the suspension of the participant from the definition of the supplier, contractor or contractor, as well as refusal to sign the contract with the winner, the bank's guarantee is not refunded, recovery from it is not withheld.

Specificity of the transfer

Article 44 of the Federal Law-44 stipulates that the funds, which are made in the form of security of the application, when organizing and conducting the electronic auction are sent to the account of the site operator in the bank. The profit received by the latter from the placement of finance is payable. Revenues from funds accepted as collateral for electronic trading are transferred from the moment of blocking to withdrawal on the basis of a contract signed by the operator with each participant upon accreditation.

Requirements for banks

The normative act under consideration establishes that l / s of participants are opened on the account of the operator of the site in order to account for the performance of transactions related to ensuring participation in the electronic auction. Article 44 44-FZ, with the amendments introduced by the regulatory enactment No. 396, requires financial stability of banking institutions. They are established including the size of capital, profitability, assets, liquidity, as well as the structure of ownership. The requirements apply to banks in which the operator of the site opens accounts to account for funds provided by participants as collateral. A list of such financial structures, rules of imprisonment and terms of service contracts are established by the government. The bank and the operator, who opened accounts for the recording of money as security, are jointly and severally liable for compliance with the terms of the refund of money specified above.

Features of blocking

Considering Art. 44 FZ-44 as amended, it should be noted that the freezing of funds that are made by an electronic auction participant to secure an application is terminated by the operator in the same cases as the return of finance at a closed event. At the same time, unified requirements for the functioning of electronic platforms should be observed. They are defined in accordance with Part 4 of Article 59 of the Federal Executive Power Institute.

Exceptions

In Art. 44 FZ-44 with changes 2013-2014. There are cases in which the return of funds contributed by the participant as security is not made. They include:

1. Refusal or evasion of the subject from the conclusion of the contract.
2. Failure to provide or provide it with violations of the conditions established by Article 44 of the Federal Law 44-FZ, before the signing of the contract.
3. The withdrawal or change by the participant of the application in the definition of the contractor, the supplier, the contractor after the end of the period allotted for its submission.

In the case of the organization and conduct of an electronic auction, funds deposited in the form of security are transferred to the account specified by the customer, where the transactions with the money coming to him are recorded, or the amounts of the bank guarantee are paid when the above circumstances arise.

Amount of contribution

Article 44 44-FZ specifies that the amount of security should be from 0.5 to 5% of the initial (maximum) value of the contract. If it is not more than 3 million rubles, then the contribution amount is 1% of the price. If the procurement is made in accordance with the provisions of articles 28-30 of the normative act in question, and the enterprise or the institution of the penal system (the penitentiary system), a small business entity, an organization of disabled people or a socially-oriented non-profit society, the amount of security should not be more than 2% of the maximum ) Of the contract value.

44-FZ, article 44: comments on part 15

The enterprises and institutions of the MIS, acting as participants, are given advantages. They are determined by the 28th article of the law in question. In subsection 2, in particular, the following is established. When determining executors, contractors, suppliers, the customer should provide enterprises / institutions of the MIS with advantages in relation to the contract value they offer up to 15%. This is done according to the rules established by the government in accordance with the approved lists of works, goods and services. The exception is cases where transactions are concluded with a single contractor, supplier, executor. Information about this should be indicated by the customer in the notifications of the implementation of procurement and documentation for services, works and products included in the relevant lists. If the enterprise / institution of the MIS is recognized as the winner, at its request the contract may be concluded at the cost suggested by it taking into account the advantages. However, the price should not be higher than the maximum price (initial) given in the notice.

Application

Her admission to participate in the auction is regarded as an assignment of the subject to the operator of the site to block operations on his l / s. Within an hour after receipt of the application, the account opened for the implementation of operations to secure it must be frozen. The exception is the case provided for in Clause 5, Part 11 of Article 66.

Return of the application

It is carried out in the absence of a participant in the account of the participant opened for carrying out transactions related to security, the necessary amount for which blocking was not effected. The application is returned by the operator of the site. He must do this within an hour of receipt. Within 1 day from the date of return to the participant of the application in the cases established by clauses 1-4 of clause 11 of the 66th clause, the operator is obliged to stop the blocking of operations made in accordance with Part 18 of Art. 44, in respect of funds provided as collateral. When withdrawing an application for participation in an electronic auction according to the rules set forth in Part 14, Art. 66 and part 9 of Art. 69, the servicer thaws l / s. This procedure is also carried out within 1 day (working), following the day of receipt of the notification.

Thawing funds

Within 1 working day following the date of receipt by the operator of the protocol site specified in clause 6 of the 67th article, the account opened for transactions related to securing the bid of the participant not admitted to the auction shall be blocked. A similar rule applies to the l / s of the subject who did not participate in the event for reasons beyond his control. Thawing is carried out during the day following the date of placement of the auction protocol on the electronic platform. The same period is established for the removal of the account blocking opened for transactions related to the provision of the bidder who submitted the application, which was found to be inadequate to the requirements established in the organizational documentation. The exception is the case that Article 44 of Federal Law 44-FZ defines in part 27.