Article 96. Federal Law of 04/05/2013 N 44-FZ (as amended on 04/30/2021) “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”

Since the functionality of the UIS does not provide the technical ability to simply indicate the % of collateral at the stage of planning and posting a notice, indicate the amount of collateral as a % of the NMCC. There is an automatic calculation and indication of the amount from NMCC.

In the documentation (paper notice) indicate the amount of security without the amount. It is also necessary to indicate in the documentation that the size is set based on the contract price.

At the stage of signing the contract, indicate the same %, but the calculation is based on the contract price, and not the NMCC.

Scope

In accordance with the provisions of this article, security for the execution of a contract is understood as the deposit of funds in the form of a pledge or a bank guarantee by the contractor determined as a result of a special procedure. These funds are considered as insurance for the state and municipal customer against possible losses caused by the dishonest work of the contractor in implementing the obligations assumed under the contract, regardless of the results of the procedure for which such a contract was concluded.

Ensuring the execution of the contract is one of the mandatory requirements that the customer forms in

documentation

to the ongoing procurement procedure. The potential executor under the contract must provide the specified funds during the period from the moment he is announced as the winner of the procedure and such a result is recorded in special protocols on the results of the procedure until the contract is signed by both parties.

If the security was not provided within the specified period of time, the customer has the right to recognize the contractor as evading the conclusion of the contract and report this to the Federal Antimonopoly Service with the subsequent inclusion of such a contractor in the Register of Unscrupulous Suppliers.

After execution of the contract, the security is returned to the contractor in full if there were no violations of his obligations on his part. If there is an officially recorded fact of violation of the terms of the contract on the part of the contractor, the customer, based on the provisions of Article 96 of Federal Law No. 44-FZ, has the right to withhold part of the funds from the security or in its entirety, but on the basis of specially carried out claim work.

Article 96. Enforcement of the contract

Federal Law of 04/05/2013 N 44-FZ (as amended on 02/24/2021) » Chapter 3. PURCHASES § 1. General provisions » Article 96. Enforcement of the contract

1. The customer, except for the cases provided for in Part 2 of this article, in the notice of procurement, procurement documentation, draft contract, invitation to participate in determining the supplier (contractor, performer) in a closed way must establish a requirement to ensure the execution of the contract.

2. The customer has the right to establish a requirement to ensure the execution of the contract in the notice of procurement and (or) in the draft contract when making a purchase in the cases provided for in paragraphs 3 and 3.1 of Chapter 3 (if the initial (maximum) contract price does not exceed five hundred thousand rubles), paragraphs 2, 7, 9, 10 of part 2 of Article 83, paragraphs 1, 3 and 4 of part 2 of Article 83.1, paragraphs 1, 2 (if the legal acts provided for in this paragraph do not provide for the customer’s obligation to establish a contract security requirement), 4 - 11 , 13 - 15, 17, 20 - 23, 26, 28 - 34, 40 - 42, 44, 45, 46, 47 - 48 (if contracts concluded in accordance with clauses 47 - 48 do not provide for advance payment), 51 , 52 parts 1 article 93 of this Federal Law.

2.1. No longer valid as of January 1, 2021. — Federal Law of December 29, 2015 N 390-FZ.

2.2. The customer has the right to establish in the notice of procurement, procurement documentation, draft contract, invitation to participate in the determination of a supplier (contractor, performer) in a closed way the requirement to ensure warranty obligations in the event of establishing requirements for such obligations in accordance with Part 4 of Article 33 of this Federal Law . The amount of guarantee guarantees cannot exceed ten percent of the initial (maximum) contract price.

3. Performance of a contract and guarantee obligations can be ensured by providing a bank guarantee issued by a bank and complying with the requirements of Article 45 of this Federal Law, or by depositing funds into an account specified by the customer, which, in accordance with the legislation of the Russian Federation, records transactions with funds received by the customer. The method of ensuring the execution of the contract, warranty obligations, and the validity period of the bank guarantee are determined in accordance with the requirements of this Federal Law by the procurement participant with whom the contract is concluded independently. In this case, the validity period of the bank guarantee must exceed the contractual period for fulfilling the obligations that must be secured by such a bank guarantee by at least one month, including in the event of its change in accordance with Article 95 of this Federal Law.

4. The contract is concluded after the procurement participant with whom the contract is concluded provides security for the execution of the contract in accordance with this Federal Law.

5. If the procurement participant with whom the contract is concluded fails to provide security for the execution of the contract within the period established for concluding the contract, such participant is considered to have evaded concluding the contract.

6. If the customer establishes, in accordance with this article, a requirement for security for the execution of the contract, the amount of such security is established in accordance with this Federal Law in the notice of procurement, procurement documentation, draft contract, invitation to participate in determining the supplier (contractor, performer) closed method in the amount of one-half percent to thirty percent of the initial (maximum) contract price, except for the cases provided for in parts 6.1 and 6.2 of this article. Moreover, if:

1) the contract provides for the payment of an advance, the amount of security for the performance of the contract is established in no less than the amount of the advance, except for the case provided for in paragraph 3 of this part;

2) the advance exceeds thirty percent of the initial (maximum) contract price, the amount of security for the performance of the contract is established in the amount of the advance;

3) in accordance with the legislation of the Russian Federation, settlements under the contract in terms of advance payment are subject to treasury support, the amount of contract performance security is established by the customer from the initial (maximum) contract price (from the contract price in the case provided for in part 6.2 of this article when concluding a contract based on the results of determining suppliers (contractors, performers) in accordance with paragraph 1 of part 1 of Article 30 of this Federal Law), reduced by the amount of such advance.

6.1. If, in accordance with the legislation of the Russian Federation, settlements under a contract are subject to treasury support, the customer has the right not to establish a requirement to ensure the execution of the contract. Moreover, if the customer establishes a requirement for security for the execution of the contract, the amount of such security is set at up to ten percent of the initial (maximum) contract price (of the contract price in the case provided for in Part 6.2 of this article when concluding a contract based on the results of determining the supplier (contractor, performer) in accordance with paragraph 1 of part 1 of article 30 of this Federal Law).

6.2. If a contract is concluded based on the results of identifying a supplier (contractor, performer) in accordance with clause 1 of part 1 of Article 30 of this Federal Law and the customer has established a requirement for security for the execution of the contract, the amount of such security is established in accordance with parts 6 and 6.1 of this article from the contract price, according to in which a contract is concluded in accordance with this Federal Law.

6.3. If the price, sum of prices of units of goods, work, services proposed in the application of a procurement participant is reduced by twenty-five percent or more in relation to the initial (maximum) contract price, initial sum of prices of units of goods, work, services, the procurement participant, with by which the contract is concluded, provides security for the execution of the contract, taking into account the provisions of Article 37 of this Federal Law.

7. During the execution of the contract, the supplier (contractor, performer) has the right to change the method of securing the contract and (or) provide the customer, in exchange for the previously provided security for the contract, with a new security for the contract, the size of which can be reduced in the manner and cases provided for in parts 7.2 and 7.3 of this article. The supplier (contractor, performer) has the right to change the method of securing warranty obligations and (or) provide the customer with new security for warranty obligations in exchange for the previously provided warranty obligations.

7.1. If the contract provides for separate stages of its execution and a requirement for security for the execution of the contract is established, during the execution of this contract the amount of this security is subject to reduction in the manner and cases provided for in parts 7.2 and 7.3 of this article.

7.2. The amount of contract performance security is reduced by sending the customer information about the fulfillment by the supplier (contractor, performer) of obligations to supply goods, perform work (its results), provide a service, or about the fulfillment of a separate stage of the contract and the cost of fulfilled obligations for inclusion in the appropriate register of contracts, provided for in Article 103 of this Federal Law. The size of the contract performance security is reduced in proportion to the cost of the fulfilled obligations, acceptance and payment of which were carried out in the manner and within the time frame provided for by the contract. If the contract is secured by providing a bank guarantee, the customer’s demand for payment of sums of money under this guarantee may be presented in an amount not exceeding the amount of the contract security calculated by the customer on the basis of information on the contract performance posted in the relevant register of contracts. If the contract is secured by depositing funds into the account specified by the customer, upon application of the supplier (contractor, performer), the customer will return the funds to him within the period established in accordance with Part 27 of Article 34 of this Federal Law in the amount for which the amount of contract performance security calculated by the customer on the basis of information on contract performance posted in the relevant contract register has been reduced.

7.3. The reduction in the amount of contract performance security provided for in parts 7 and 7.1 of this article is carried out subject to the absence of unfulfilled demands by the supplier (contractor, performer) for the payment of penalties (fines, penalties) presented by the customer in accordance with this Federal Law, as well as the customer’s acceptance of the delivered goods, completed work (its results), service rendered, results of a separate stage of contract execution in the amount of the advance paid (if the contract provides for the payment of an advance) or in an amount exceeding the advance paid (if, in accordance with the legislation of the Russian Federation, settlements under the contract regarding the payment of the advance are subject to treasury support ). Such a reduction is not allowed in cases determined by the Government of the Russian Federation in order to ensure the defense capability and security of the state, protect the health, rights and legitimate interests of citizens of the Russian Federation.

8. The provisions of this Federal Law on securing the performance of a contract, including provisions on the provision of such security, taking into account the provisions of Article 37 of this Federal Law, on securing warranty obligations do not apply in the case of:

1) concluding a contract with a procurement participant who is a government agency;

2) purchasing services for providing a loan;

3) conclusion by a budgetary institution, state, municipal unitary enterprises of a contract, the subject of which is the issuance of a bank guarantee.

8.1. A procurement participant with whom a contract is concluded based on the results of identifying a supplier (contractor, performer) in accordance with paragraph 1 of part 1 of Article 30 of this Federal Law is exempt from providing security for the execution of the contract, including taking into account the provisions of Article 37 of this Federal Law on security guarantee obligations in the event that such a procurement participant provides information contained in the register of contracts concluded by customers and confirming the execution by such participant (without taking into account succession) within three years before the date of filing an application for participation in the procurement of three contracts executed without the application of penalties to such participant (fines, penalties). Such information is provided by the procurement participant before concluding a contract in the cases established by this Federal Law to provide security for the execution of the contract. In this case, the sum of the prices of such contracts must be no less than the initial (maximum) contract price specified in the notice of procurement and procurement documentation.

9. In the case provided for in Part 9 of Article 54 of this Federal Law, if judicial acts or force majeure circumstances preventing the signing of a contract last for more than thirty days, the competition is recognized as invalid and the funds contributed as security for the execution of the contract are returned to the winner of the competition in within five working days from the date the competition was declared invalid.

10. The specifics of contract enforcement provided for in this article in the field of state defense order may be established by Federal Law of December 29, 2012 N 275-FZ “On State Defense Order”.

11. Expired from January 1, 2021. — Federal Law of December 29, 2015 N 390-FZ.

• Article 95. Change, termination of contract
• Article 97. Monitoring of procurement

What size is installed

The amount of contract performance security is established on the basis of Parts 6 and 7 of Art. 96 44-FZ. According to Part 6, the amount of security is 5-30% of the NMCC. The specific amount of security is established by the customer at his own discretion and is stated in the notice or in the project documentation.

If the NMCC exceeds 50 million rubles, the customer sets a requirement to ensure the execution of the contract in the amount of 10-30% of the NMCC, but not less than the amount of the advance paid. If the advance exceeds 30% of the contract price, then the security is equal to the amount of the advance.

In Part 6 of Art. 96 44-FZ also provides for anti-dumping measures. If the NMCC of the contract during the bidding decreased by more than 25%, the supplier makes a security in an amount exceeding one and a half times the amount of security specified in the procurement documentation.

The amount of security for contracts signed with representatives of small businesses and socially oriented non-profit organizations under clause 1, part 1, art. 30 44-FZ, is determined based on the contract price, and not based on the NMCC. However, such security should not be less than the advance payment.

The amount of guarantee obligations cannot exceed 10% of the NMCC.