New terms for payment of the contract under 44-FZ in 2021

What forms of payment are there?

The state contract must necessarily contain the following conditions: form, terms and procedure for payment for goods, works, services in accordance with 44-FZ (Article 34 of 44-FZ). The form of payment determines whether the money will be transferred to the government customer's counterparty by non-cash means, for example, to a bank account, or paid in cash. The payment procedure involves one of the following options:

• full one-time transfer of funds;
• advance;
• staged payment as the contract is fulfilled.

The terms and conditions of payment by the customer are mandatory; their absence in the text or inconsistency makes the agreement invalid.

Use free instructions from ConsultantPlus experts to correctly fill out all the essential and non-essential terms in the draft contract.

What are the terms of payment for the contract under 44-FZ?

Decree of the Government of the Russian Federation dated September 18, 2019 No. 1205 reduced the maximum payment period for supplied GWS from 30 calendar days to 15 working days.

This rule applies to auctions in which:

• Participants are included in the list indicated in Part 5 of Art. 3 Federal Law “On the procurement of goods, works, services by certain types of legal entities”, or are small and medium-sized businesses;
• all performers are SMEs;
• the customer requires the involvement of subcontractors that are SMEs in carrying out the work.

This resolution came into force on 01/01/2020 and applies to purchases carried out after this date.

Based on what documents is the contract paid?

In order for payment for goods under 44-FZ to take place at the Treasury, the customer must have both an expert opinion, a certificate of completion of work and a delivery note, if provided for by the terms of the agreement.

How to pay in full

A full lump sum payment is established by agreement, when the customer’s counterparty does not need an advance payment to execute the government contract, and the agreement does not provide for intermediate stages of execution. With a one-time payment, the government customer's counterparty fulfills its obligations in full, the customer accepts the result of the performance and, if the result does not raise any questions and is accepted, pays for it in full.

According to the general rule from Part 13.1 of Art. 34 44-FZ, payment terms for work under 44-FZ in 2021 are no more than 30 days from the date the parties sign the acceptance documents. A downward change is permissible: the state customer has the right to pay before the expiration of the month given to him. The 30-day period cannot be extended.

IMPORTANT!

In May 2021, government decree No. 667 dated April 28, 2021 was published. RF PP No. 667 indicates how many days federal customers are allotted for payment under a contract under Federal Law 44 - 10 working days. According to the new rule, all recipients of federal budget funds are required to pay for the supply of goods, performance of work, and provision of services within 10 working days after signing the acceptance documents.

These are not all innovations. Resolution No. 667 explains the time frame within which the customer is obliged to pay the supplier’s fulfilled obligations under December contracts: if the execution of a government contract falls on the 1st-20th of December, then payment is made no later than 1 business day before the end of the financial year with mandatory compliance with the limits of budget obligations. If the government contract is executed from December 21 to December 31, that is, in the second half of December, the obligations are paid in the next financial year within the limits of the next year’s LBO. The new rules apply to all December government contracts, with the exception of agreements:

• on defense and state security of the country;
• for the supply of goods, works and services in accordance with paragraphs. “c”, “d”, “l” clause 11 of the provisions from the RF PP No. 1496 of 12/09/2017;
• for the supply of goods, works and services under clauses 20, 40, 41, 46, 52 and 56 of Part 1 of Art. 93 44-FZ;
• for security, rent, utilities and other payments for building maintenance, which are concluded to meet the needs of customers for a period up to December 31 inclusive.

Consequences of violation of 44-FZ on contract payment

Delay in payment by the customer under contract 44-FZ entails administrative liability.

If the customer finds himself in a similar situation for the first time, his official will be fined 30–50 thousand rubles. Repeated late payment under the 44-FZ contract may lead to the suspension of the customer’s official from work for 1-2 years.

According to Part 13.1 of Art. 34 The beginning of the payment period is the date of signing the papers on acceptance of the work. This rule does not depend on the characteristics of the GWS.

As an example, we can cite the decision of the Tambov OFAS dated 09/06/2017 No. RZ-332/17. The subject of the auction in this case was the repair of a highway. Under the terms of the agreement, the contractor was to receive funds for work according to the following scheme:

• payment for the stage - within 30 days after signing the acceptance documents, namely the KS-2 certificate and the KS-3 certificate;
• final payment no longer than 30 days from the date of putting the road into operation.

The controllers noted that the payment period cannot be counted from the moment the facility is put into operation.

How to pay in stages

Phased transfer of the amount by agreement is permissible in government contracts, where there is a breakdown into stages of work, which are accepted separately as they are completed. For example, in construction agreements.

Based on the results of each stage, the parties accept the results, draw up and sign documents closing the stage. The contract stipulates the timing of payment of remuneration for a separate stage of work. Payment for each stage is made within 30 days after acceptance and within 10 working days for federal customers.

Final recommendations to the customer on terms of payment for the contract under 44-FZ

1. Check the text of the agreement to avoid mistakes when setting payment terms. For SMP/SONO, they are 15 working days (Part 13.1, Article 34 44-FZ). The law allows you to choose a shorter period, that is, a time period of no more than 15 working days.
2. This period of time should not depend on the receipt of funds for the corresponding expense item and the commissioning of the facility. Part 13.1 art. 34 44-FZ records the following information about payment for the contract under 44-FZ: the contractor must receive the amount due to him within 30 days after acceptance and signing of the relevant documents. Other terms are not allowed here.
3. For each stage of work, a payment deadline must be established. If the customer meets 30 days after signing the first acceptance document, and the supplier manages to make several deliveries during this time, simultaneous payment for them is allowed. If the customer does not meet the deadline in a month, it is better to prepare a delivery and payment schedule for the contract in accordance with 44-FZ.
4. Do not forget to make sure that the deadline for the final payment in the documentation corresponds to the payment schedule for the work - details can be clarified in the order of the Novosibirsk OFAS dated September 22, 2017 No. 08-01-400. Remember that the terms specified in the text of the agreement cannot conflict with the terms established by 44-FZ.
5. The customer has the right to reduce the amount of payment under the contract by the amount of the accrued penalty, if the corresponding condition is contained in the agreement.

How to pay if there is an advance

An advance is a payment made by the customer in favor of the counterparty before he completes and delivers the result of the work to him. The amount of the advance is deducted from the total amount of the contract, therefore, after its execution, the customer’s payment is made in the amount of the agreement minus the already transferred advance. The latest edition of payment terms under 44-FZ on procurement does not introduce any special rules regarding the terms of advance payment. The law does not establish general requirements for the amount of the advance. We accept any advance amount, up to 100%.

Here is an example of a contract with advance payment.

But there is government decree No. 1496 dated December 9, 2017 on measures to ensure the execution of the federal budget. It regulates the conclusion and execution of certain types of government contracts. It established limits on advance payments. For example, in relation to agreements for construction, reconstruction and major repairs.

Federal Law No. 44-FZ prohibits paying advances to suppliers to whom anti-dumping measures were applied when concluding contracts, that is, to those who, at the stage of participation in the tender, offered a contract price significantly lower than the NMCC.

Conditions of government contracts on payment: which complaints from participants FAS recognizes as justified

Let's consider some terms of payment for state and municipal contracts. Which complaints from FAS participants can be considered justified and which can be ignored?

Many executors of municipal and state contracts found themselves in a situation where the delivery of goods was carried out, services were provided, work was completed, but no funds were received from the customer. And in May 2021, amendments were made to the provisions of Law No. 44, reducing the payment period for government contracts with SONO and SMP to 15 working days. Customers were required to make settlements with the remaining contractors within 30 days.

For customers, such changes have become a complete headache, since a variety of circumstances can prevent them from paying for goods or work: the managers did not provide funds, or urgent needs required emergency expenses. How to get out of this situation? In the draft contract, customers began to specify payment terms that were convenient for them. And it never hurts to be on the safe side. This kind of insurance in the texts of contracts can lead to the imposition of penalties on customers by the FAS.

What terms of settlements under government contracts does the FAS consider illegal and impose fines on customer officials?

1. With SONO and SMP, it is necessary to carry out settlements within a specially established time frame - within 15 days (working days are taken into account). Example. The university needed to repair the roof. To carry out the work, it was decided to choose a contractor from among SONO or SMP. During the proceedings before the FAS, the customer’s procurement specialist argued that he was not aware of changes in legislation and new terms for settlements with such participants. If the procurement was carried out for everyone, then there would be no violation. However, only non-profit organizations and small business representatives were allowed to purchase. The draft contract states that settlements with the contractor will be carried out within 30 days after signing the acceptance certificate. However, such a period for procurement under Law No. 44 (Article 30, Part.) does not correspond to the rules of the contract system. This is precisely what was indicated in the FAS decision for the Komi Republic No. 04-02/6130 dated June 27, 2021.
2. The customer will pay on time if there are funds in the budget. Example. In September 2021, the administration announced an auction for the supply of hot water boilers and their installation. Payments to the winning bidder were undertaken to be made in two stages. 10 calendar days were allotted for the first stage, and the remaining 3 million rubles. the amount must be paid by December 31, 2016. The controllers did not pay attention to the typo with the year. However, the clause stipulated in the draft state contract regarding the transfer of funds “... when they arrive in the budget of the Listvyansky Municipal District” was one of the reasons for initiating the case. The controllers explained that customers plan to carry out purchases only after the volume of rights in total terms has been communicated to them. Contracts are concluded in accordance with the schedule, and their payment is made within the limit of budgetary obligations. The purchase cannot be planned and carried out if there are no limits. Therefore, the condition regarding the availability of funds in the budget does not comply with the rules of the contract system (decision of the Irkutsk FAS No. 1021 of October 9, 2021).
3. The customer will make payment within the period that is counted from the moment the payments are made through the treasury. Example. The institution held an auction for work related to the construction of a highway. The draft government contract indicated the correct period - 30 days from the date of signing the acceptance certificate for KS-11. However, the next paragraph contained a clarification that the payment period is determined by the date when the payment documents are processed through the treasury. The controllers indicated that the draft contract violates Art. 34, part 13.1 of Law No. 44 (decision of the Kursk FAS No. 244/2017 of September 15, 2021).
4. The customer will make payment 30 days after the facility is put into operation. Example. In accordance with the draft government contract, the customer planned to make the current payment within 30 days after signing the KS-3 certificate and the KS-2 certificate. He wanted to make the final payment within 30 days after the facility was put into operation. Conclusion of the controllers: the period should not be counted from the moment the facility is put into operation; the draft contract contains two different payment terms (decision of the Tambov FAS No. RZ-332/17 dated September 6, 2021).
5. The customer calculates the period in banking days. Example. The government institution did not respond to the deadline specified in Part 13.1 of Art. 34 of Law No. 44, and used the old template to draw up the draft contract. In accordance with it, the contractor was going to pay for the work within 30 banking days from the date of signing the acts in the KS-2 and KS-3 forms. This period exceeded the maximum permissible. For this reason, the complaint was recognized as justified (decision of the Belgorod FAS No. 363-17 of September 18, 2021).
6. The customer will make payment within 30 working days. Example. When developing the draft government contract, the customer established that final settlements with the supplier (payment in the amount of 70 percent of the entire contract amount) would be made within 30 days (working days) from the date of signing the acceptance certificate for residential premises. Since the law provides for a condition regarding the payment period for services within 30 calendar days, the controllers decided that the condition regarding payment by the customer for services within 30 working days contradicts the requirements of Art. 34, part 13.1 of Law No. 44 (Resolution of the Omsk FAS in case No. 03-10.2/29-2018/7.30 on the application of penalties).

Cases when the FAS does not see any violations in the terms of government payment contracts

The Ministry of Finance of the Russian Federation clarified that the contract and documentation should not contain conditions on deferment or installment payment to the supplier. It is also impossible to conclude additional agreements to the contract regulating payment terms (letter of the Ministry of Finance of the Russian Federation No. 24-03-08/70438 dated October 26, 2021). However, there are formulations and conditions of customers that do not raise any complaints from regulatory authorities.

1. The customer counts the period in banking days, and they do not exceed the maximum allowable period. Example. In the draft contract, the customer set a condition: the work will be paid within 10 banking days after signing the acceptance certificate. The participant considered that this wording contradicts Article 34, Part 13.1 of Law No. 44 and sent a complaint to the Antimonopoly Service. Referring to judicial practice, the controllers noted that the legislation does not contain the concept of “banking day”. And if this concept is not specified in the contract by the parties, the period is calculated in calendar days. In this draft contract, this concept was not clarified, which means that the customer did not violate the mandatory payment deadline (decision of the Lipetsk FAS No. 316m/17 of September 27, 2021). The deadline for payment for work in banking days is not allowed if the time of their counting is indicated incorrectly. For example, the condition “from the date of receipt of funds to the Customer’s account, but no later than December 31, 2017.” controllers considered it a violation (decision of the Mari FAS No. 02-02/57-17 of November 16, 2017).
2. The customer will make a settlement with the contractor after paying the penalty. Example. The customer purchased lathes as part of a target program in accordance with Law No. 44. The draft contract stated that full payment would be made within 10 days from the moment the supplier fulfills its obligations. It was agreed that this date is considered the day the parties signed the goods acceptance certificate. For himself, the customer provided the right to pay after paying the penalty, subject to the supplier’s delay in delivery of the goods. One of the auction participants considered this condition a limitation and sent a complaint to the FAS. However, he did not appear at the commission meeting, and no evidence was provided that his rights were being limited (FAS decision No. 17/65114/17 of September 13, 2021).
3. The customer will deduct a penalty from the payment under the government contract. Example. The terms of the contract stipulated the customer’s obligation to pay the contractor for the work after he had repaid the accrued penalty. Another clause of the draft contract states that the customer has the right to withhold penalties and fines in an indisputable manner. The customer explained to the FAS Commission that this procedure does not cancel the 30-day period established in the draft contract. The customer will pay on time, but will deduct the amount of the penalty from the payment. The controllers decided that the complaint had no basis (decision of the Murmansk FAS No. 06-10/17-225 of August 14, 2021).
4. For each stage of the government contract, the customer determines its own payment period. Example. An auction was announced for an extension to the school building. The deadline for construction work is until December 31, 2018. The contract for the construction of capital construction projects must contain a condition that the work performed by the contractor is paid for in stages. In this case, the mandatory payment period for all parties applies to certain stages of the contract. The filed complaint states that the documentation does not establish the stages and terms of payment for work in 2021. However, the authorized body explained that, in accordance with the schedule, work that needs to be completed in 2017 will be accepted and paid within 30 days, but only at the beginning of next year. The Novosibirsk FAS did not accept the arguments from the complaint (FAS decision No. 08-01-339 of August 21, 2021). It is also worth paying special attention to the final payment deadlines specified in the payment schedule and documentation. If they do not correspond or contradict each other, the controllers will issue an order (decision of the Novosibirsk Federal Antimonopoly Service No. 08-01-400 of September 22, 2017).
5. The contractor is given 15 working days to settle payments with SONO and SMP. Example. The administration has set a requirement to involve subcontractors from SONO and SMP in the implementation of the contract for 20 percent of its total price. The FAS received a complaint about the documentation. The applicant indicated that the draft contract must contain standard conditions stipulated in government decree No. 1466 of December 23, 2016 and establish a 15-day period for settlement with subcontractors. However, the controllers had their own point of view. It is not the customer who is obliged to pay the subcontractor for the work for 15 working days, but the contractor entering into the subcontract agreement. The customer is not purchasing specifically for SONO and SMP, which means that the 30-day settlement period established by him is legal.

Tags : FAS, complaints,

March 30, 2018

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Special deadlines for SMP

There are exceptions to the general rule. They relate to government contracts concluded as a result of procurement carried out among SMP and SONCO. They are provided with payment under the government contract under 44-FZ - 15 days (working days) after the goods or services have been accepted.

Sometimes the rules for paying money are established in special laws. For example, the government, in order to ensure the defense capability and security of the state, has the right to establish a special deadline for payment of emergency services under 44-FZ (Part 8 of Article 30 of 44-FZ, RF PP No. 1205 of September 18, 2019). This possibility is stipulated in Part 13.1 of Art. 34 44-FZ.

Liability for delay

Payment terms are strictly established by law: 30 calendar days - in general, 15 working days - for SMP and SONKO, 10 working days - for federal customers. If the government customer transfers money later, he faces:

• payment of penalties in accordance with Part 5 of Art. 34 44-ФЗ in the amount of 1/300 of the key rate of the Central Bank of the Russian Federation for each day of delay. The penalty depends on the unpaid amount. If the customer has partially fulfilled his obligations, the amount that he has already transferred for calculation is not taken into account;
• administrative liability for an official of the customer who was late. Responsibility arises under Art. 7.32.5 of the Code of Administrative Offenses of the Russian Federation and consists of a fine of 30,000 to 50,000 rubles. Repeated violations result in disqualification for a period of 1 to 2 years.

Latest changes in contract payment terms under 44-FZ

Such an important condition as the terms of payment for the contract under 44-FZ has been subject to changes since 2021. At that time, the period was 30 calendar days for any bidders other than SMP or SONKO. For the latter, it was reduced by half, that is, no more than 15 working days.

After the amendments made in 2021, the payment terms have not changed, but a new condition has appeared in the law. Now, if another legal act establishes deadlines that differ from 44-FZ, payment must be made in accordance with the norms of a special regulatory legal act. Therefore, customers are advised not to rush to include a standard payment phrase in the draft contract, but to study the regulations related to the subject of the agreement.