Анастасия Мазова
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Законопроект о внесении изменений в Федеральный закон от 18 июля 2011 г. № 223-ФЗ «О закупках товаров, работ, услуг отдельными видами юридических лиц» (далее – Закон № 223-ФЗ) и ст. 45 Федерального закона от 5 апреля 2013 г. № 44-ФЗ «О контрактной системе в сфере закупок товаров, работ, услуг для обеспечения государственных и муниципальных нужд»1 принят вчера в первом чтении.
Новые положения касаются оформления и содержания банковской гарантии, предоставляемой МСП для участия в закупке. В частности, банковская гарантия должна быть:
выдана банками из перечня, который публикует Минфин России на своем официальном сайте; включена в реестр независимых гарантий; содержать право заказчика на бесспорное взыскание денежных средств с банковского счета , если кредитная организация не исполнила в десятидневный срок его требование.
Срок действия гарантии должен быть не менее одного месяца с даты окончания подачи заявок на участие в соответствующей закупке. Уточняется, что в случае несоблюдения участником закупки новых требований по оформлению гарантии, заказчик вправе будет отказаться от ее принятия. Другие изменения возлагают на банки, выдающие банковские гарантии, ответственность за просрочку выполнения обязательств по документу. Банк должен будет уплатить заказчику 0,1% от подлежащей уплате суммы по гарантии за каждый день такой просрочки (ч. 14.3 ст. 3.4 Закона № 223-ФЗ в новой редакции). Также банки будут не вправе отозвать выданную гарантию (п. 3 ч. 14.1 ст. 3.4 Закона № 223-ФЗ в новой редакции). К тому же, предлагается разработать типовую форму банковской гарантии .
Как отмечается в пояснительной записке к законопроекту, одобрение предлагаемых требований, повысит доступность госзакупок для субъектов МСП и снимет барьеры для участия в них.
Напомним, что текущая редакция Закона № 223-ФЗ не содержит требований к банковским гарантиям, а значит заказчики свободны в установлении правил к ее оформлению, в том числе форме, стоимости, срокам действия, размеру обеспечения, а также к выдающим гарантию банкам.
К примеру, предъявление требования к банку о наличии у него актуального кредитного рейтинга уровня не ниже «ВВ-» в одном из рейтинговых агентств, таких как: S&P, Moody’s, Fitch или рейтинг Эксперт РА не ниже «А++», а также капитал не меньше 60 млрд руб., собственные средства (капитал) в размере не менее 10 млрд руб.
Поскольку порог требований заказчика не ограничен, соответствие субъектов МСП установленным инициатором закупок критериям, вызывает сложности. Таким образом, принятие законопроекта обеспечит единый подход к оценке как самих банковских гарантий, так и банков, которые их выдают для обеспечения заявок или исполнения договоров в рамках закупок по Закону № 44-ФЗ и Законом № 223-ФЗ.
Правки исключат возможность предоставления подложных гарантий, поскольку Законопроектом предусматривается оформление исключительно банковской гарантии, которая включена в один из реестров банковских гарантий, по Закону № 44-ФЗ.
В случае принятия законопроекта, требования к банковской гарантии будут применяться с 1 января 2022 года.
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1 С текстом законопроекта о внесении изменений в Федеральный закон от 18 июля 2011 г. № 223-ФЗ «О закупках товаров, работ, услуг отдельными видами юридических лиц» и статью 45 Федерального закона от 5 апреля 2013 г. № 44-ФЗ «О контрактной системе в сфере закупок товаров, работ, услуг для обеспечения государственных и муниципальных нужд» и материалами к нему можно ознакомиться на официальном сайте Госдумы
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