Today's event is led by Vasily Sednov, Deputy Regional Director of OCS and Evgenia Olimpieva, General Director of TUZPROF.
E.O.: The topic of the conversation is very simple, but for some reason it causes problems for suppliers. Therefore, we will understand this acute topic.
V.S.: It is obvious that any business entity, any entrepreneur goes to a public procurement not for the sake of getting pleasant impressions from the process itself. And not even for the sake of winning the competition, because winning is not yet the final result. Everyone goes there to make money, because they are engaged in entrepreneurial activity, which means that the final result should be considered achieved when the transaction is executed by both parties, including when the business receives the remuneration due for its execution. And here, it would seem, public procurement under Federal Laws No. 44 and No. 223, all customers should be properly provided with financial resources, since they are arranging public procurement. And there should be no problems with the execution on their part. However, this is not always the case. There are also delays and long periods of non-payment, non-performance of contracts. And here I want to talk about how a businessman, an entrepreneur, should behave when the customer violates the contract for payment. Should I go to court right away? Or do we have some other ways and measures of influencing such negligent participants?
E.O.: Let's start with the fact that customers are not always negligent. Customers have real problems when something happens with underfunding. But there are situations when they begin to "teach" an objectionable supplier/contractor/executor, thereby punishing them with a delay. But they forget that the delay is on their part, and they are influenced. But, as my practice and the practice of my colleagues show, very often suppliers go exactly along the path of judicial recovery. But we know that courts are such a long saga, and the customer does not always run to pay the arrears immediately after you file a lawsuit. Sometimes you can quickly resolve the case in court, and sometimes you can get stuck in litigation for a year or two or more. There is a pre-trial settlement procedure. It's interesting. But it is based on the fact that we punish the customer. And here, suppliers must decide for themselves what they ultimately want to receive: money or continue to be credited, but not spoil relations with the customer. Because now we will talk about the responsibility of the customer, about administrative responsibility. But precisely as a tool of influence on the customer, about appeals to certain government agencies, such as Financial Control, the Control and Accounting Department, commissioners for the rights of entrepreneurs, various public organizations and, of course, the Federal Antimonopoly Service and the Prosecutor's Office.
V.S.: That is, there are tools, in addition to judicial ones.
E.O.: Of course they are. And, by the way, they work better and faster. Because the customer is still an official who, firstly, does not want to lose money, and fines are taken from the pocket of the official, and secondly, he wants to stay in his place. In this case, under Federal Law 144, the responsibility for recurrence is more severe. This is disqualification.
V.S.: Let's remind the listeners, as a preview to this topic, what legally established provisions regulate the customer's fulfillment of payment obligations. That is, are there legally established deadlines, what are they, and what to do if they are not observed?
E.O.: Yes, deadlines have been set, but they have changed a lot, they have been cut. This has become more convenient for us. In 2022, both under Federal Law 44 and under Federal Law 223. But let's take it one step at a time. Federal Law 44. If we have a competitive purchase, this is the standard 7 working days. If we have a competitive contract, but with treasury support, no matter what: the Treasury fully supports the contract or only the advance payment, here the law establishes 10 working days. State Defense contracts for this year - 30 calendar days. From a single supplier - 10 working days, but provided that there is no electronic acceptance. Purchases from a single supplier can be either with electronic acceptance, this is through the EIS and with registration of the contract there. There will be standard 7 working days. If direct, without electronic acceptance, without registration, then strictly 10 working days.
V.S.: That is, the deadlines are quite reasonable. The customer must have the money ready by the time he concludes the contract. If it is not executed within six months, when can you wait for this execution?
E.O.: Let's start with the fact that on paper the money has already been allocated to him. Namely, transferred to his personal account, and moreover, when the customer concludes a contract, he notifies through the electronic budget. And the distributors of funds know that it is necessary to credit the money to the personal account of this customer so that he can fulfill his obligations. Under Federal Law 223, this is not the Treasury, these are the customers' own current accounts in banks. According to the general rule, we also have a payment term of 7 working days. But there is a small exception. However, it does not apply if the purchase is from a small business entity. So, if the purchase is from small and medium-sized businesses under Federal Law 223, regardless of whether it is a tender or direct, but only the idea of subjectivity, i.e. they comply with the coding for subjects, then here are 7 working days. And it is unchanged. According to the provision on other purchases, customers may set a different payment term. At the same time, in the Procurement Regulations, the customer is obliged to strictly and clearly prescribe why a different term is applied, i.e. to argue this change, to prescribe in which cases, and for which types and types of goods, works and services a different term is applied. They do not have the right to use it otherwise.
At the same time, I want to draw your attention to the fact that there are often cases when contracts-contracts, even at the stage of making a decision on participation in the purchase, indicate that payment will be made at the time when money is received in the current account, at the time of receipt of funding from the customer, when the customer receives, if it is State Defense, money from the head contractor. Please note that all such requirements in the contract are not legal. Both in the contract and in the contract under Federal Law 223, because Article 3 of Federal Law 223 and Article 34 of Federal Law 44 say strictly and clearly that the payment period is counted from the date the customer signs the acceptance document. In Federal Law 44, a new acceptance document signed by the customer is posted on the EIS. There is no other option. Therefore, any references are the basis, if you have not written a request for clarification, in the future it is possible to go to court and declare the contract invalid in this part and demand that it be brought into compliance with the norms of the current legislation. But remember for yourself: the payment period for the customer begins to be calculated from the date the customer signs the document on acceptance of the delivered goods, performed work, rendered service.
V.S.: Let's move on to the algorithm of actions of a participant who was offended and did not receive payment on time.
E.O.: The first step, before taking any other action, should be another check of your own actions. We check the payment terms, we calculate them. We remember that the payment period begins to be calculated from the day following the fulfillment of the obligations undertaken. We have the moment of posting on the EIS. For example, we posted it on the EIS today, which means that from tomorrow we will have a countdown of seven working days that the customer is allocated by law for payment. We looked. Next, we need to check if we have provided all the documents. Often in my practice, I come across the fact that suppliers forget that they are paid on the basis of an invoice. And we sometimes forget to issue an invoice. In Federal Law 44, we check whether we have attached an invoice for payment to the EIS. If we do not have an invoice attached, then this means that we have time to notify. We send the invoice to the customer. Be sure to mark that you sent this invoice so that you can confirm it later. It is not enough just to sign. You may also have invoices. Pay attention to this. We checked everything here. Everything is fine. The customer's payment period has begun to run. But you see that the deadline is coming to an end, there are a couple or three days left, and the money is not coming.
What to do in this case? In this case, we write a notification. We remind the customer. You can, of course, call. But I recommend writing it down so that it is in writing. We must understand that there may be some problems with payment. For these 2-3 days before the end of the payment period, we write a notification to the customer. "Dear customer, I executed the contract then, you accepted the goods then, which is confirmed by this. Your payment period expires on such and such a date. Please inform me when the payment will be made. And, if there is a delay, what is it related to?" This notification must be sent. You need to remind the customer, he is also a person. Maybe he was distracted by something, maybe he has a lot of work, maybe he just forgot. You remind the customer, and he, by the way, will be grateful for it. And, if it's forgetfulness, he will put your payment order forward, and you will receive your money.
If you have done everything, sent the notification, the deadline has expired, and the money has not been received, then there are two options. Many use them separately, and especially within the framework of Federal Law 44. Pay attention to what document you are creating. We can write a notification of delay, or we can issue a claim for delay. These are two types of documents. They are different, especially in Federal Law 44. If we are talking about a notification, then this is a letter. This is a softer text, where you, addressing the customer, write that he has a delay, we ask you to pay attention to this, to complain that there is not enough money, that you are forced to take out loans, etc., etc. Moreover, you send it by regular registered mail with notification to the post office. The main thing is that you can confirm that you sent it. A claim is already a pre-trial document. This is a strict form of letter. This is when you already notify that there is a delay, there are certain sanctions for it, you have contractual sanctions, this is a penalty. In this case, the delay in payment is calculated as one three-hundredth of the refinancing rate. And you can already notify about administrative responsibility here. And pay attention to the fact that within the framework of Federal Law 44, we conduct the claim procedure through the Unified Information System, through your personal account, from this year. You should not send such a claim, but if you want, you can poison it, but from the point of view of Federal Law 44, the claim is sent through the EIS, this is now a strict requirement, otherwise the courts may return the claim to you, since the procedure will not be followed.
V.S.: What if the money doesn't come after the notifications?
E.O.: Then our heavy artillery comes into play. There are customers who pay when they see a lawsuit. I still advise you to file a lawsuit in parallel and immediately write to the financial control authorities and the higher authority. Financial control is the control and audit department, the control and accounting chamber. The higher authority is usually the manager of the customer's funds and, as a rule, he is also the founder. Or we look at the website who the founder is. We send it to the regional department or ministry, we don't need to go to the Ministry of the Russian Federation.
We write to the founder that there is a situation, there is a delay, we ask for assistance in payment. As a rule, the manager always connects. When you bring the customer to administrative responsibility, the customer can jump off this responsibility if he declares that the founder or manager did not transfer money to the personal account. I had nothing to pay with. This will be the basis for not bringing the customer to administrative responsibility.
Then it will be necessary to act against the manager and the founder of budget funds. But some movements will go.
V.S.: We have reached the most important milestones in protecting a business entity. If the notification, claim, appeal to higher structures did not help, where should we move?
E.O.: Yes, we tried to somehow influence the customer, but if he didn't hear us, we turn on the "heavy artillery". And the first frontier of this "artillery" is the Federal Antimonopoly Service. You file an application with the FAS and under Federal Law 44, under Federal Law 223 and under the State Defense Order, this is either Federal Law 44 or Federal Law 223. You have sanctions on the customer for violating the payment terms. Of course, the Federal Antimonopoly Service will not oblige the customer to pay. But it will create the necessary pressure for us. The customer will be brought to administrative responsibility and will hurry to take all necessary measures to ensure that the funds are transferred to you.
Now about the types of responsibility under Federal Law 44. Article 7-32.5 of the Code of Administrative Offenses. The first fine that the customer's official will receive is from 30,000 to 50,000 rubles. If the customer, after such a punishment is imposed on him, commits it again, or if he has already committed a similar offense earlier, and it has not yet been repaid, then in this case the customer's official will be disqualified for a period of up to 2 years. That is, the person will lose his job. The official may be either the head of the customer, or the contract manager or the chief accountant. It all depends on who is responsible for monitoring and paying for the goods under internal documents. Or maybe no one is assigned, and the head of the customer will be responsible himself.
For the State Defense Order, there is a separate norm D70-32.1. Here the fine is from 30,000 to 50,000 rubles, but subsequently there are other penalties for non-fulfillment of the terms of the contract, more severe. Within the framework of Federal Law 223, they always shout that it is impossible to attract under it. This is not true. It is possible. The FAS attracts. This is Article 7-32.3 A fine on an official - the same from 30 to 50 thousand rubles. Here a fine on the organization is possible. It ranges from 50 to 100 thousand rubles, while you can apply two fines at once: on an official for improper control, namely the head, and the organization for non-fulfillment of payment obligations.
Thus, the FAS will act on the customer, encouraging him to pay you the money. There are cases when the FAS refuses this. Usually we contact the territorial Department of the Antimonopoly Service. And, if the Federal one refused, and these cases are isolated, what to do? We submit an appeal to the Central Office of the FAS that there is an illegal unreasonable refusal. And we can also challenge it in court. The main thing for us is that the customer has a certain pressure. Be sure to send a copy of your appeal to the customer so that he knows about it, and a copy to his founder. In this situation, the customer, as a rule, accelerates in finding funds for payment. And they ask you to withdraw the application. Because, if you withdraw the application, and he manages to fulfill the obligation to pay before the end of the audit, he will not be brought to administrative responsibility.
A good tool that often has an effect on the customer. The situation when customers may not be held liable for the absence of an offense, when there is no live money in the account. In this case, we have Article 15-15-11 of the Code of Administrative Offenses. It provides for administrative responsibility for untimely allocation of funds. Here, budget distributors will already begin to suffer. And this is the founder. He will suffer for one customer, for another, and on the third he will think whether he should pay so much money for the fact that the funds are not brought to the customers on time. This is how we act when we contact the FAS.
V.S.: Quite severe sanctions if we are talking not about an organization, but about an official. To pay 30 or 50 thousand, and then also risk your position, not everyone will want to. But, if you don't contact the FAS, and not the court, then where else?
E.O.: In addition to the court, we also have the Prosecutor's Office. We can write there, and additionally to the Commissioner for the Rights of Entrepreneurs in your region. He, for his part, will also send an appeal to the prosecutor's office and ask to investigate this situation and pay special attention. That is, two documents will go: from you and from the Commissioner for the Rights of Entrepreneurs. You can complain to the Prosecutor's Office about both the customer for the offense of non-payment, and the founder for the fact that he does not take any action and does not influence the subordinate person. So you can also complain to the FAS for the fact that it does not fulfill its obligations to protect the rights and legitimate interests of procurement participants, participants in legal relations. That is, the prosecutor's office, despite the fact that they have rather limited opportunities, has a great functional impact on individuals. And then the prosecutor's office betrays the court, initiates administrative proceedings. The FAS is also afraid of the prosecutor's office, they also do not need extra penalties and punishments. Well, then, as I advised, parallel appeals to the court. Or, if you did not file in a timely manner, then it remains on the basis of the claim that you posted on the EIS, if it is Federal Law 44, or you sent it to the customer, you take supporting documents according to the rules of legal proceedings. We file a lawsuit in court for recovery and, depending on the size, we will have either an ordinary legal dispute or a simplified legal procedure. It will all depend on the amount of debt. Be sure to calculate the amount of the penalty, be sure to indicate that you ask to accrue the penalty until the moment of actual payment, be sure to immediately ask to recover not only the state fee, but also various postal expenses, of course, if you involve a lawyer from the outside, then the expenses for providing you with legal assistance. And then we have a dispute with you. It will all depend on whether it will be delayed or not. And then we come for a court decision. In most cases, it is resolved in favor of the supplier. And then we go to the enforcement proceedings.
V.S.: Thus, in fact, the procurement participant has a variety of tools of different properties, different strengths of impact. And the participant can use the path that he considers the most effective in his particular situation.
E.O.: There are many tools, but I still advise you not to choose one way. I believe that you need to act first with the FAS, then with the prosecutor's office. But before that, still do everything, do not be lazy, you will still have one document in essence flow into another, just the wording will change a little. This does not cause difficulties, but speeds up the process of receiving funds. And on enforcement proceedings, I repeat, if you really want to get money, you do not need to involve bailiffs. They already have work above the roof, they will not deal with your case in a special order, conduct enforcement proceedings yourself. You have an excellent tool to get a writ of execution, and depending on what level your customer is, send a writ of execution for execution either to the Treasury, which will make a direct debit of funds and transfer it to your account. Or it's a bank. We can request the tax service, find out the customer's current accounts, and the current account is also seized, and funds are debited under the writ of execution. You don't even have to wait here. The main thing is that the court decision must enter into legal force. As soon as this happened, we begin to act. We will call the customer, find out if he is ready to voluntarily return the debt to us. And we act in this way.
That's all I wanted to say about the tools. These are working tools, they need to be used. This greatly speeds up the receipt of funds. You don't have to be afraid that you will spoil relations with the customer. I always say one thing: customers are not afraid to spoil relations with you, they try to bring you to at least a contractual penalty for the slightest violation, even if there is none. Often illegally, they are not afraid to quarrel with you. Therefore, my advice is to defend your rights. You don't have to run and wave your saber right away, of course. But talk to the customer, conduct the first correspondence, warn that you are ready to take such and such steps, and it will hurt him. Well, if the customer does not hear, then the saber is drawn, and forward!