Responsibility of the parties under 44-FZ in 2021: fines and penalties

What are the fines under 44-FZ?

Law No. 44-FZ establishes strict rules for public procurement. For their violation, the customer will be held accountable: from disciplinary to criminal (Article 107 44-FZ). Most often, monetary punishment is applied to government customers. They are required to pay an administrative fine (a fixed amount) or a penalty (a fee for each day of delay).

Fines for customers

Penalties will be applied to the customer for violation of 44-FZ at any stage of the procurement:

1. When planning purchases and drawing up schedules.
2. Choosing a procurement method, calculating the NMCC.
3. During the tender, conclusion and payment of the contract.
4. When maintaining a register of contracts and interacting with the FAS.

Sanctions for customers are prescribed in the Code of Administrative Offenses (CAO RF). According to it, violating customers are almost always fined, and in rare cases, disqualified for up to 2 years. In this case, responsibility most often lies with the customer’s officials, for example, contract managers, members of the purchasing commission. An employee can be held accountable even after his dismissal, if the statute of limitations for the violation has not expired - within 1 year.

Fines are imposed on organizations less often, because then money for the benefit of the budget is collected from the budget organization. But if the offense is serious, then both the employee and the organization will be held accountable.

According to the Administrative Code, the fine for employees can reach 50 thousand rubles, for a legal entity of the customer - 100-300 thousand rubles.

Please note that sanctions for violations in government procurement also apply to contractors. The amount of the fine under 44-FZ for suppliers is most often comparable to the amount of the fine for the customer. But it is not established by the Administrative Code, but is calculated from the contract price according to the rules from Government Resolution No. 1042.

Exceptions to the rules

It is worth recalling that according to Law No. 44 (Article 34, Part 15), the customer has the right not to fulfill the requirement regarding the mandatory stipulation in the contract of the amounts of penalties and penalties if the purchase is carried out from a single supplier:

• for an amount that does not exceed 100 thousand rubles (Law No. 44, Article 93, Part 1, Clause 4);
• to conclude an agreement to visit a theatre, zoo, concert, cinema, museum, circus, sporting event or exhibition (Law No. 44, Article 93, Part 1, Clause 15);
• if medicines are purchased (Law No. 44, Article 93, Part 1, Clause 28).

Tags : penalties, fines, 44-FZ, calculation example,

08 April 2016

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Comments ()

1. Sergey May 03, 2021, 12:26 0
   Tell me, if the contract went into the red during an electronic auction (offer for the right to conclude a contract), what amount of the fine according to Government Resolution 1063 should the customer write in the contract?

   answer

2. Semyon 03 May 2021, 14:47 0

   Hello, Sergey! In this case, we also recommend that you follow the methodology for calculating fines and penalties imposed for violation of government contracts, which is specified in the “Rules for determining the amount of fines assessed for improper fulfillment of contractual obligations” - i.e. depending on the proposed contract price, even if it is for an increase. In this case, you can also refer to paragraphs 3 - 5 of these Rules.

   answer

3. Yulia April 13, 2021, 04:31 pm 0

   Tell me, according to the contract (where the customer is a budget organization), the supplier was late in delivering the machine. The customer compiled and sent a claim where the amount of the penalty was incorrectly calculated, how can the customer correct the error?

   answer

   Effective technologies April 13, 2021, 16:41 0

   Julia, hello! If you are interested as a customer, we recommend that you send a second letter to the supplier, in which you indicate that in the previous letter dated No.___ of such and such a date, an error (typo) was made, and ask to pay penalties in the amount indicated below + attach the correct calculation. Or you can wait for the Supplier’s response, in which he himself will point out the mistakes made. But if you then go to court for collection in the absence of voluntary payment, then you need to act according to the first option, since the supplier may not answer you. If you are a supplier, draw up your calculation of the penalty, in which you indicate the mistakes made, and send it to the customer.

   answer

Punishment for failure to pay on time

Customers must pay for contracts within clear deadlines. The rules are established by Art. 34 44-FZ: for all purchases - up to 30 days from the date of signing the acceptance certificates, for purchases among small and medium-sized enterprises - up to 15 days. If the deadlines are missed, the customer will be held accountable under Art. 7.32.5 Code of Administrative Offences.

Punishment will be imposed on an employee who pays a contract late or violates the payment procedure - this will be a fine of 30 to 50 thousand rubles. If an employee repeats the violation, he will be disqualified for a period of 1 to 2 years.

In addition, the supplier may demand a penalty from the customer if he pays the contract late (Part 5 of Article 34 of 44-FZ). Penalties are charged for each day of delay, including holidays and weekends, according to the formula: 1/300 of the current key rate of the Central Bank of the Russian Federation * of the amount not paid on time. Penalties will not be charged for the days required for the customer to accept the goods (letter of the Ministry of Finance dated November 7, 2017 No. 24-03-08/73293).

Separately, the customer will be charged a fine if he does not fulfill his obligations under the contract. The amount of the fine is calculated according to the rules from Government Resolution No. 1042 (clause 9):

• 1 thousand rubles, if the final contract price is not more than 3 million rubles;
• 5 thousand rubles, if the contract price is 3-50 million rubles;
• 10 thousand rubles, if the price is 50-100 million rubles;
• 100 thousand rubles, if the price is more than 100 million rubles.

In this case, the total amount of fines accrued to the customer within the framework of one purchase should not exceed the contract price (clause 12 of PP No. 1042).

In order not to make mistakes in terms of contract payment and to avoid fines, calculate the dates of the procurement stages in advance and keep track of them. The free deadline calculator in the online service for government customers Kontur.Snab will help you quickly plan your deadlines.

Procedure for calculating fines and penalties

Calculation of fines and penalties in relation to the legal entity that violated the terms of the contract is carried out on the basis of the key rate of the Central Bank. The calculation is used both for contractors and for customers.

The general calculation procedure is as follows:

Penalty (Fine) = Contract price X 1/300 Key rate X Number of overdue days.

When making such a calculation, the amount of settlement is used as the amount that was not fully paid or the amount of which the obligations under the contract were not fulfilled. The number of days is also counted without gaps, including weekends and holidays, that is, the concept of calendar days should be used.

From the number of days that are used as days of delay, those days on which the customer accepted the results of the contract should be excluded. However, the exclusion of such days is possible only if this issue is in no way regulated by the provisions of the contract. The specified rules for calculating penalties and interest are formulated in the letter of the Ministry of Finance of the Russian Federation dated November 7, 2017 No. 24-03-08/73293.

Table of fines of the Code of Administrative Offenses under 44-FZ as amended in 2019

Register of unscrupulous suppliers in case of delay in government contract

In addition to penalties, if a supplier fails to deliver on time, there is another risk: in accordance with paragraph 2 of Article 104 of 44-FZ, a supplier whose government contract was terminated by a court decision or as a result of a unilateral refusal by the customer due to a significant violation of the terms of the contract , must be included in the register of unscrupulous suppliers. In accordance with clause 9 of Article 95 of 44-FZ, the customer has the right to unilaterally refuse to fulfill the contract in accordance with Civil Law, if this was provided for in the contract. However, the concept of a material breach of contract is evaluative in nature.

How to challenge a punishment

Violations in the customer’s work are usually identified by FAS or prosecutors during inspections. Then the antimonopoly authority initiates a case of an administrative violation, considers it and imposes a fine on the customer or his employees. At the same time, they will not be held accountable if the violation is discovered 1 year after its commission.

The punishment can be challenged in court. This should be done precisely in three cases:

1. If the fine was imposed illegally, the statute of limitations has expired, the employee is not guilty, etc.
2. If the procedure for bringing to administrative responsibility is violated, the protocol on bringing to administrative responsibility was drawn up incorrectly, the accused was not notified of the fine or the time of its consideration in court.
3. If the customer fails to fulfill his obligations under the contract due to force majeure or the fault of the supplier. These mitigating conditions are prescribed in Part 9 of Art. 34 44-FZ.

When going to court, the customer can refer to the fact that 44-FZ has been violated for the first time or the violation is minor. There are examples in judicial practice when, in the first case, the court reduced the amount of the fine, and in the second, it canceled the punishment altogether.

A decision on an administrative offense must be challenged within 10 days from the date of its receipt. After this, the resolution will come into force.

New fines for customers and suppliers

A bill was published on the website of draft regulations that approves changes to the Code of Administrative Offenses and establishes liability for non-compliance with the minimum mandatory share of purchases of Russian goods of certain types; they propose to supplement Article 7.30 of the Code of Administrative Offenses with a new part 16. For this violation, the customer’s official faces a warning or a fine of 20,000 to 50,000 rubles.
The Ministry of Industry and Trade will initiate and consider cases regarding this offense.

IMPORTANT!

The official will be released from liability if there is a positive assessment from the Ministry of Industry and Trade and justification for the impossibility of the customer achieving the minimum share of purchases.

The changes will take effect from 01/01/2022.

They plan that innovations will contribute to strict compliance by customers with the obligation to fulfill quotas, achievement of the goals of protecting the Russian domestic market, development of the national economy and support of Russian producers.

On December 15, 2020, bill No. 1075609-7 was introduced into the State Duma, which establishes administrative liability for the provision of false information by procurement participants under 44-FZ.

The bill stipulates that if a supplier provides false documents as part of an application confirming compliance with additional requirements when concluding or executing a contract, then officials and individual entrepreneurs will be fined from 20,000 to 50,000 rubles, and legal entities - from 100,000 to 300,000 rubles

IMPORTANT!

Punishment will not be applied if such actions do not constitute a criminal offense.

For providing, when submitting an application, knowingly false information about the proposed product, including about goods that are supplied during the performance of work, provision of services, officials and individual entrepreneurs face a fine of 10,000 to 30,000 rubles, and a legal entity will pay from 50 000 to 200,000 rubles. For this purpose, the Code of Administrative Offenses will be supplemented with a new article 7.30.1 “Provision of false documents (copies thereof) and information in the procurement of goods (works, services) for state and municipal needs.”

The authors of the amendments indicate in the explanatory note that the purpose of the changes is to minimize the participation of suppliers with unreliable documents in procurement, increase efficiency in spending budget funds and help create a level playing field for competition.

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