Adopted by the State Duma on December 19, 2012 Approved by the Federation Council on December 26, 2012
Chapter 1. General provisions
Article 1. Subject of regulation of this Federal Law
This Federal Law establishes legal basis state regulation of relations related to the formation, features of placement and implementation of the state defense order, determines the basic principles and methods of state regulation of prices for goods, works, services (hereinafter also referred to as products) under the state defense order.
Article 2. Legal regulation relations in the field of state defense procurement
1. Legal regulation of relations in the field of state defense procurement is based on the Constitution Russian Federation and is carried out in accordance with the Budget Code of the Russian Federation, Civil Code of the Russian Federation, this Federal Law, federal laws in the field of defense and security of the Russian Federation, supply of products for federal state needs, placing orders for the supply of goods, performance of work, provision of services for federal needs, as well as other regulatory norms adopted in accordance with them legal acts Russian Federation.
2. The provisions of federal laws and other regulatory legal acts of the Russian Federation relating to the subject matter of regulation of this Federal Law are applied to the extent that does not contradict this Federal Law.
3. If an international treaty of the Russian Federation establishes rules other than those provided for by this Federal Law, the rules of the international treaty apply.
Article 3. Basic concepts used in this Federal Law
For the purposes of this Federal Law, the following basic concepts are used:
1) state defense order - tasks established by a regulatory legal act of the Government of the Russian Federation for the supply of goods, performance of work, provision of services for federal needs in order to ensure the defense and security of the Russian Federation, as well as the supply of products in the field of military-technical cooperation of the Russian Federation with foreign states in accordance with the international obligations of the Russian Federation;
2) the state customer of the state defense order (hereinafter referred to as the state customer) - a federal body executive power or the State Atomic Energy Corporation "Rosatom", providing supplies of products under the state defense order;
3) the main contractor for the supply of products under the state defense order (hereinafter referred to as the main contractor) - a legal entity created in accordance with the legislation of the Russian Federation and which has concluded a state contract with the state customer for the state defense order;
4) the contractor participating in the supply of products under the state defense order (hereinafter referred to as the contractor) - the person who has entered into a contract with the main contractor;
5) main indicators of the state defense order - financial support of the state defense order, approved by the federal law on the federal budget for the next financial year and planning period;
6) state contract under the state defense order (hereinafter referred to as the state contract) - an agreement concluded by the state customer on behalf of the Russian Federation with the main contractor for the supply of products under the state defense order and providing for the obligations of the parties and their responsibilities;
7) contract - an agreement concluded by the head contractor with the contractor or between contractors for the supply of products necessary to the head contractor, the contractor for the fulfillment of the state defense order and providing for the obligations of the parties and their responsibilities.
Chapter 2. Formation, approval and placement of the state defense order
Article 4. Formation of the state defense order
1. The basis for the formation of the state defense order are:
1) military doctrine of the Russian Federation;
2) plans for the construction and development of the Armed Forces of the Russian Federation, other troops, military formations and bodies;
3) state weapons program;
4) long-term (federal) target programs in the field of defense and security of the Russian Federation;
5) mobilization plan for the economy of the Russian Federation;
6) programs and plans for military-technical cooperation of the Russian Federation with foreign states in accordance with international treaties of the Russian Federation;
7) decisions of the President of the Russian Federation and decisions of the Government of the Russian Federation in the field of defense and security of the Russian Federation.
2. The state defense order may include:
1) research and development work on the creation and modernization of weapons, military and special equipment, as well as the disposal and destruction of weapons, military and special equipment being decommissioned;
2) research and development work to develop the research, design and production and technological base of organizations in order to ensure the fulfillment of the state defense order, as well as increasing the mobilization preparation of the economy of the Russian Federation;
3) supplies of weapons, military and special equipment, as well as raw materials, materials and components;
4) supplies of military equipment, food and non-food goods;
5) repair, modernization of weapons, military and special equipment, their service maintenance, as well as the disposal of decommissioned weapons, military and special equipment;
6) work on the destruction of chemical weapons;
7) work on the construction, reconstruction, technical re-equipment of facilities intended for the needs of ensuring the defense and security of the Russian Federation, including for the disposal of weapons, military and special equipment being decommissioned;
8) work on mobilization preparation of the economy of the Russian Federation;
9) supplies of products in the field of military-technical cooperation of the Russian Federation with foreign states in accordance with the international obligations of the Russian Federation;
10) supply of products for accumulation material assets state material reserve;
11) other supplies of products determined in accordance with Part 1 of this article for the purpose of ensuring the defense and security of the Russian Federation.
3. The state defense order is formed based on the main indicators of the state defense order.
4. Proposals for the main indicators of the state defense order are developed when drawing up the draft federal budget for the next financial year and planning period based on proposals from government customers.
5. The composition, rules for the development of the state defense order and its main indicators are determined in the manner established by the Government of the Russian Federation.
Article 5. Approval of the state defense order
1. The Government of the Russian Federation approves the state defense order and measures for its implementation within one month after the President of the Russian Federation signs the federal law on the federal budget for the next financial year and planning period.
2. When approving a state defense order, the Government of the Russian Federation approves state customers.
3. The state defense order may be updated within the limits of the main indicators of the state defense order, taking into account the results of its placement and based on the progress of its implementation, as well as in the event of amendments to the federal law on the federal budget for the current financial year and planning period in the current financial year.
4. The procedure for clarifying the state defense order is established by the Government of the Russian Federation upon its approval.
Article 6. Placement of state defense order
1. The placement of a state defense order is carried out in the manner established by the legislation of the Russian Federation on the placement of orders for the supply of goods, performance of work, provision of services for federal needs, taking into account the specifics provided for by this Federal Law.
2. When placing a state defense order through bidding, the state customer has the right not to establish a requirement for Money as security for the execution of a state contract in the event that the competition documentation or auction documentation establishes requirements for participants in the placement of a state defense order that they have the appropriate production capacity, technological equipment, financial and labor resources for the supply of products under the state defense order, regardless of the size of the initial (maximum) price of the state contract (lot price).
3. When placing a state defense order for the supply of weapons, military and special equipment, military property accepted for service, supply, operation, tender documentation, auction documentation must contain an indication of the names or trademarks of such weapons, military and special equipment, military property.
4. Determination of the initial (maximum) price of a state contract in the case of placing a state defense order through bidding, as well as the price of a state contract in the case of placing a state defense order with a single supplier (performer, contractor) is carried out in the manner established by the Government of the Russian Federation.
5. If during the execution of a government contract, the subject of which is the supply of products under the state defense order in accordance with state program weapons approved by the President of the Russian Federation, and the delivery period for which is at least three years, there has been a change in the price of these products, the price of such a contract can be changed by decision of the Government of the Russian Federation when approving the state defense order for the next year and planning period or when clarifying the state defense order for the current year.
6. The state defense order is required for acceptance by a single supplier (executor, contractor), determined by legislative acts of the Russian Federation and acts of the President of the Russian Federation, acts of the Government of the Russian Federation, provided that the state defense order ensures the level of profit when calculating the price of supplied products according to the state defense order in the manner established by the Government of the Russian Federation in relation to determining the price of a government contract, as well as state unitary enterprises and (or) other organizations occupying a dominant position in the commodity market for products under the state defense order, in the event that there are no applicants for participation in the tender for the placement of the state defense order or the lead contractor has not been determined based on the results of the said tender.
7. To fulfill the state defense order, quotas are established for mandatory supplies (state reservation) of the most important types of material and technical resources to the state customer, the main contractor, the contractor, supplier organizations, manufacturing organizations, regardless of their organizational and legal forms. The procedure for establishing these quotas and forming the list and volume of specified material and technical resources approved as part of the state defense order is established by the Government of the Russian Federation. Deliveries of the specified material and technical resources to the state customer, the main contractor, and the contractor in accordance with these quotas are carried out at prices prevailing on the commodity market.
8. The terms for placing a state defense order are established by the Government of the Russian Federation.
Chapter 3. Main responsibilities of the state customer, head executor, executor
Article 7. Main responsibilities of the state customer
State customer:
1) develops, with the involvement of lead executors, executors determined in the prescribed manner, proposals on the volume of supplies of products under the state defense order and its main indicators;
2) organizes and carries out the placement of orders for the supply of products under the state defense order;
3) forms the initial (maximum) price of a state contract when placing a state defense order through bidding, as well as the price of a state contract when placing a state defense order with a single supplier (performer, contractor) in accordance with the legislation of the Russian Federation;
4) concludes government contracts and takes the necessary measures for their implementation;
5) ensures advance payment and payment for supplies of products under state defense orders in accordance with the terms of government contracts;
6) exercises control over the targeted use by the head contractor of budget allocations allocated to pay for the supply of products under the state defense order;
7) requests from the lead contractor the information and justification necessary to change the price of the government contract concluded in accordance with Part 5 of Article 6 of this Federal Law;
8) exercises control over the provision by the main contractor, as well as the contractor (subject to the inclusion of provisions on the right of control in the state contract and contract) of supplies of products under the state defense order in accordance with the state contract, contract;
9) participates in testing prototypes and production samples (complexes, systems) of weapons, military and special equipment, military equipment, as well as materials and components;
10) organizes and conducts state tests of prototypes (complexes, systems) of weapons, military and special equipment, military equipment, prepares documentation for their acceptance for service, supply, and operation;
11) carries out quality control of goods, works, services, respectively, supplied, performed, provided under the state defense order, for compliance with the requirements of the legislation of the Russian Federation, regulatory and other acts of the state customer, the terms of the state contract;
12) ensures acceptance of products under the state defense order in accordance with the terms of the state contract;
13) approves the technical documentation necessary for the creation and serial production of weapons, military and special equipment, military equipment;
14) carries out state accounting of the results of scientific and technical activities obtained during the implementation of the state defense order at the expense or with the involvement of funds from the federal budget;
15) carries out other actions in accordance with the legislation of the Russian Federation.
Article 8. Main responsibilities of the head executor, executor
1. Leading executor:
1) determines the composition of performers, justifies, with their participation, the price of products under the state defense order, terms and conditions of financing, including advances, supplies of such products (in general and in individual stages). When forming and clarifying a state defense order, the lead contractor, determined in the prescribed manner, at the request of the state customer, with the participation of the contractors, justifies the price for such products, the possible timing and procedure for the formation of their deliveries;
2) ensures the supply of products under the state defense order in accordance with the terms of the state contract;
3) organizes and conducts tests of prototypes and serial samples (complexes, systems) of weapons, military and special equipment, military equipment, as well as materials and components, as provided for in the technical documentation;
4) ensures that products under the state defense order comply with the mandatory requirements established by the state customer in accordance with the legislation of the Russian Federation on technical regulation and (or) the state contract;
5) ensures the quality of goods, works, services, respectively, supplied, performed, provided under the state defense order, in accordance with the requirements of the legislation of the Russian Federation, regulatory and other acts of the state customer, the terms of the state contract;
6) ensures that the state customer and the federal executive body exercising control (supervision) functions in the field of state defense procurement exercise control over the execution of the state contract, including at certain stages of its execution;
7) carries out separate accounting of the results of financial and economic activities for each government contract;
8) submits, at the request of the state customer, the federal executive body exercising control (supervision) functions in the field of state defense procurement, information on the costs of executed government contracts;
9) provides the state customer with the justifications necessary for changing the price of the state contract and prepared jointly with the contractors, and in the event of an increase in the price of the state contract, also a list of measures aimed at reducing costs;
10) performs other actions necessary for the execution of the state contract in accordance with the legislation of the Russian Federation.
2. Performer:
1) ensures that supplies of products under the state defense order, including materials and components, comply with the requirements established by the contract;
2) organizes and conducts tests of prototypes and serial samples of materials and components provided for in the technical documentation;
3) ensures the quality of goods, works, services, respectively supplied, performed, provided under the state defense order, in accordance with the requirements of the legislation of the Russian Federation and the terms of the contract;
4) ensures that the state customer (subject to the inclusion of provisions on the right of control in the state contract and contract), the main contractor and the federal executive body exercising control (supervision) functions in the field of state defense procurement, control over the execution of the contract, including at certain stages of its execution;
5) carries out separate accounting of the results of financial and economic activities for each contract;
6) provides, at the request of the lead contractor, information on the costs of executed contracts;
7) performs other actions necessary for the execution of the contract in accordance with the legislation of the Russian Federation.
3. In the event of termination of supplies of products under the state defense order for the next year or planning period, the main contractor does not have the right to liquidate or repurpose the production facilities that ensure the supply of such products without agreement with the state customer.
4. The procedure for the state customer’s approval of the possibility of liquidation or repurposing of production facilities specified in Part 3 of this article, and compensation for losses caused to the main contractor due to non-use of the specified production facilities by decision of the state customer, is established by the Government of the Russian Federation.
Chapter 4. State regulation of prices for products under state defense orders
Article 9. Goals and principles of state regulation of prices for products under state defense orders
1. State regulation of prices for products under the state defense order is carried out in order to effectively use budget funds and create optimal conditions for the rational placement and timely execution of the state defense order while maintaining a balance of interests of the state customer and the main contractor, contractor.
2. State regulation of prices for products under state defense orders is based on the following basic principles:
1) unified legal support for all participants in the placement and implementation of the state defense order;
2) incentives to reduce costs for the supply of products under state defense orders;
3) ensuring the profitability of supplies of products under the state defense order;
4) justification of the costs of the head contractor, contractor;
5) application of antimonopoly regulation measures;
6) maintaining a balance of interests of the state customer and the main contractor, the contractor.
Article 10. Methods of state regulation of prices for products under state defense orders
1. State regulation of prices for products under state defense orders is carried out through:
1) approval of lists of products under the state defense order, which are subject to state price regulation;
2) establishing rules for determining the initial (maximum) price of a state contract when placing orders through bidding, as well as the price of a state contract in the case of placing a state defense order with a single supplier (performer, contractor);
3) applications various types prices for products under state defense orders;
4) taking into account in the structure of the price of products under the state defense order the costs incurred for its production and sale;
6) determining the minimum and maximum amounts of profitability (profit) and the procedure for their application when calculating prices for products under the state defense order, taking into account the funds that are necessary for the main contractor, the contractor for the development of production capacities and servicing the attracted capital, ensuring the fulfillment of the state defense order, and also taking into account the financial support provided by the state in order to fulfill the state defense order;
7) ensuring payment to the main contractor, the contractor of economically justified costs associated with the implementation of the state defense order;
8) state registration of prices for products under the state defense order;
9) maintaining a register of prices for products under state defense orders;
10) exercising state control over the application of prices for products under the state defense order in the formation, placement and implementation of the state defense order;
11) implementation by the main executor, the executor of separate accounting of the results of financial and economic activities for each government contract.
2. The procedure for state regulation of prices for products supplied under state defense orders, the powers of federal executive authorities and the State Atomic Energy Corporation Rosatom for state regulation of prices in the field of state defense orders are established by the Government of the Russian Federation.
Article 11. Types of prices for products under state defense orders
1. When concluding a contract in the case of placing a state defense order with a single supplier (performer, contractor), the following types prices for products under state defense orders:
1) approximate (specified) price;
2) fixed price;
3) cost-reimbursing price.
2. The conditions and procedure for applying types of prices for products under state defense orders are established by the Government of the Russian Federation.
Chapter 5. Fulfillment of the state defense order
Article 12. Ensuring the implementation of the state defense order
1. The Government of the Russian Federation, in order to ensure and stimulate the implementation of the state defense order in accordance with the legislation of the Russian Federation, has the right:
1) determine the approximate conditions of government contracts and contracts;
2) establish the terms for placing tasks of the state defense order upon its approval;
3) install limit level profit when calculating the price of products under the state defense order;
4) when drawing up the draft federal budget for the next financial year and planning period, provide for the main executors and executors budgetary allocations for the implementation of budget investments;
5) when approving a state defense order, establish the amount of advance payments under a state contract no more than the amount of financing for this contract in the current financial year;
6) provide state guarantees to the Russian Federation for loans attracted by the main contractors, contractors to carry out activities in order to ensure the fulfillment of the state defense order;
7) provide subsidies to the main executors and executors to reimburse part of the costs of paying interest on loans received from Russian credit organizations;
8) provide subsidies to the main executors and executors in order to prevent insolvency (bankruptcy);
9) establish, in accordance with the legislation of the Russian Federation, other measures to ensure the fulfillment of the state defense order.
2. In order to ensure the fulfillment of the state defense order, the state customer has the right:
1) provide for in a long-term state contract in accordance with the state weapons program and long-term targeted programs advance purchase by the lead contractor of raw materials, materials and components in the amount necessary to ensure the execution of this contract;
2) provide in the state contract the terms and procedure for the submission by the main contractor of a report on the use of advance payments during the term of this contract;
3) establish measures of economic incentives for the lead contractor that do not contradict the legislation of the Russian Federation.
3. Financial resources paid by the state customer to the main contractor are intended only for expenses for the implementation of the state defense order and advance payments for the relevant work. The main executor is responsible for the misuse of these funds.
4. Credit organizations providing loans to lead contractors, contractors, including under state guarantees of the Russian Federation, in order to fulfill tasks of the state defense order, information about which constitutes a state secret, must have an appropriate license in accordance with the requirements of the legislation of the Russian Federation.
Article 13. Control (supervision) in the field of state defense procurement
1. Control (supervision) in the field of state defense procurement is carried out by the federal executive body exercising control (supervision) functions in the field of state defense procurement, in accordance with Federal Law of December 26, 2008 N 294-FZ "On the Protection of the Rights of Legal Entities And individual entrepreneurs in the exercise of state control (supervision) and municipal control", Federal Law of July 21, 2005 N 94-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs" and this Federal Law.
2. If, as a result of scheduled and unscheduled inspections, violations of the requirements established by legislative and other regulatory legal acts of the Russian Federation in the field of state defense procurement are revealed, the federal executive body exercising control (supervision) functions in the field of state defense procurement has the right:
1) issue binding orders to eliminate violations identified by him;
2) apply to a court or arbitration court with a claim, an application to compel the execution of the orders issued by it;
3) initiate and consider cases of administrative violations.
Article 14. Features of antimonopoly requirements in the field of state defense procurement
1. A dominant position is recognized as the position of an economic entity in which it carries out or has the ability to supply raw materials, materials and components, perform work, provide services necessary to fulfill the state defense order, and in relation to this economic entity at least one of the following is carried out conditions:
1) the business entity is included in the register in accordance with the established procedure the only suppliers(performers, contractors);
2) the economic entity is the only manufacturer of products under the state defense order, the use of which, and (or) its components, and (or) components when fulfilling a state defense order are provided for by design or other documentation or the requirements of the state customer.
2. In accordance with the antimonopoly legislation of the Russian Federation, the economic entity specified in Part 1 of this article is subject to a ban on abuse of a dominant position.
3. The main executor is obliged to submit to the antimonopoly authority information about all facts of increases in prices by suppliers (performers, contractors) for raw materials, materials and components, works, services necessary to fulfill the state defense order, if the established or proposed price is more than five percent exceeds the price calculated using price indices and deflator indices by type economic activity, determined in the manner established by the Government of the Russian Federation. The specified information is provided within thirty days from the date of detection of the fact of an increase in prices by suppliers (performers, contractors) in a form approved by the antimonopoly authority.
4. The antimonopoly authority, in the manner established by Federal Law No. 135-FZ of July 26, 2006 “On the Protection of Competition,” within its competence, identifies cases of violation of the prohibition on abuse of a dominant position, initiates and considers cases of violation of this prohibition, and decides based on the results their consideration of decisions and issues appropriate orders, holding them accountable for violations committed in accordance with the procedure established by the legislation of the Russian Federation. When considering cases of violation of the ban on abuse of a dominant position, the commission includes representatives of the federal executive body exercising control (supervision) functions in the field of state defense procurement, the number of which must be at least thirty percent of the total number of commission members.
Article 15. Responsibility for violation of the norms of this Federal Law, other federal laws and other regulatory legal acts of the Russian Federation in the field of state defense procurement
Persons guilty of violating the norms of this Federal Law, other federal laws and other regulatory legal acts of the Russian Federation in the field of state defense procurement bear disciplinary, civil, administrative and criminal liability in accordance with the legislation of the Russian Federation.
Chapter 6. Final provisions
Article 16. On the recognition as invalid of certain legislative acts (provisions of legislative acts) of the Russian Federation
From the date of entry into force of this Federal Law, the following shall be declared invalid:
1) Federal Law of December 27, 1995 N 213-F3 “On State Defense Order” (Collected Legislation of the Russian Federation, 1996, N 1, Art. 6);
2) Article 12 of the Federal Law of February 2, 2006 N 19-FZ "On amendments to certain legislative acts of the Russian Federation and the recognition as invalid of certain provisions of legislative acts of the Russian Federation in connection with the adoption of the Federal Law "On placing orders for the supply of goods, fulfillment works, provision of services for state and municipal needs" (Collected Legislation of the Russian Federation, 2006, No. 6, Art. 636);
3) Article 7 of the Federal Law of December 1, 2007 N 318-F3 “On amendments to certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law “On the State Atomic Energy Corporation Rosatom” (Collected Legislation of the Russian Federation, 2007, N 49, Art. 6079);
4) Federal Law of December 28, 2010 N 402-FZ “On the suspension of certain provisions of legislative acts of the Russian Federation” (Collected Legislation of the Russian Federation, 2011, N 1, Art. 14);
5) Article 14 of the Federal Law of July 19, 2011 N 248-FZ “On amendments to certain legislative acts of the Russian Federation in connection with the implementation of the provisions of the Federal Law “On Technical Regulation” (Collected Legislation of the Russian Federation, 2011, N 30, Art. 4596).
Article 17. Entry into force of this Federal Law
President of the Russian Federation V. Putin
In accordance with paragraphs. 6 paragraph 1 and paragraphs. 6 paragraph 2 art. 8 Law No. 275-FZ, the head executor and executors determine in contracts concluded with other executors a mandatory condition for making payments using for each contract a separate account opened in an authorized bank selected by the head executor.Taking into account the above provisions of Law No. 275-FZ, the subcontractor organization, which is included in the cooperation of the lead contractor for the implementation of the state defense order, is obliged to enter into an agreement on banking support and opening a special account in an authorized bank selected by the lead contractor. Therefore, she does not have the right to open a special account in a bank other than the one specified in the contract with the contractor and his notice.
Does a bank have the right to refuse an organization to open an account?
The organization (Executor) was faced with a situation where the Authorized Bank refused to open a special account for it on the grounds that, in the opinion of the bank, the Company carried out suspicious and dubious transactions aimed at legalizing (laundering) proceeds from crime. Let's find out if the bank is right?
According to Art. 11 of the Tax Code of the Russian Federation accounts (account) - settlement (current) and other bank accounts opened on the basis of a bank account agreement. In this case, the Bank is obliged to conclude a bank account agreement with a client who has made an offer to open an account on the conditions announced by the bank for opening accounts of this type, meeting the requirements provided for by law or the banking rules established in accordance with it (clause 2 of Article 846 of the Civil Code of the Russian Federation) .
In accordance with paragraph 2 of Art. 8 of Law No. 275-FZ The Contractor enters into an agreement on banking support with the authorized bank selected by the head contractor (clause 2, clause 2, Article 8 of Law No. 275). In addition, the Contractor notifies (before concluding contracts) other contractors of the need to conclude a banking support agreement with the authorized bank selected by the lead contractor (clause 3, clause 2, article 8 of Law No. 275-FZ).
In turn, the authorized bank is obliged to conclude agreements on banking support with the main contractor, the contractor and open separate accounts for them (clause 1, clause 2, article 8.2 of Law No. 275-FZ). In this case, a separate account is an account opened for the main contractor, the contractor, in an authorized bank for making payments under the state defense order (Clause 10, Article 3 of the Federal Law of Law No. 275-FZ). Therefore, the Executing Organization is entrusted with the obligation to open a special account in an authorized bank by Law No. 275-FZ.
According to para. 2 p. 2 art. 846 of the Civil Code of the Russian Federation The bank does not have the right to refuse to open an account, the performance of relevant operations on which is provided for by law.
However, it should be taken into account that a credit organization (bank) has the right to refuse to conclude a bank account (deposit) agreement in accordance with the internal control rules of the credit organization if it suspects that the purpose of concluding such an agreement, in pursuance of which the account is opened , is the commission of transactions for the purpose of legalization (laundering) of proceeds from crime or financing of terrorism (clause 5.2 of Article 7 of the Federal Law of 07.08.2001 No. 115-FZ “On combating the legalization (laundering) of proceeds of crime, and financing of terrorism” (hereinafter Law No. 115-FZ).
According to clause 6.2 of Ch. 6 “Regulations on the requirements for the rules of internal control of a credit organization in order to combat the legalization (laundering) of proceeds from crime and the financing of terrorism” (approved by the Bank of Russia on March 2, 2012 N 375-P), (hereinafter referred to as Regulation No. 375-P ), the following circumstances may be factors individually or collectively influencing the credit institution’s adoption of such a decision:
A legal entity has a size authorized capital equal to or slightly greater minimum size authorized capital established by law ((clause “a”, clause 6.2 of Regulation No. 375-P.
From the date of registration legal entity less than six months have passed (clause “b”, clause 6.2 of Regulation No. 375-P);
According to the tax service, the address of mass registration is indicated as the legal address of the legal entity (clause “c”, clause 6.2 of Regulation No. 375-P).
Absence of a body or representative of a legal entity at the address of a legal entity indicated in the Unified State Register of Legal Entities (“g” clause 6.2 of Regulation No. 375-P);
One and the same individual is the founder (participant) of a legal entity, its director and) carries out the management accounting(clause “d”, clause 6.2 of Regulation No. 375-P);
There is information from the Bank of Russia that the Organization has been identified as having debt from non-residents under contracts for which the Organization closed transaction passports in connection with their transfer for servicing to another authorized bank (clause “e”, clause 6.2 of Regulation No. 375 -P);
In relation to a legal entity, there is a decision of the interdepartmental coordinating body performing the functions of combating the financing of terrorism to freeze (block) funds or other property (clause “and” clause 6.2 of Regulation No. 375-P);
Other factors independently determined by the credit institution (clause “k”, clause 6.2 of Regulation No. 375-P.
Taking into account the above, despite the fact that the opening of a special account by the Contractor as part of its execution of a state defense order is provided for by law, a credit institution has the right to refuse to enter into a bank account agreement in accordance with the rules of internal control of a credit institution, if there is reason to believe that the Organization is carrying out operations aimed at on legalization (laundering) of proceeds from crime or financing of terrorism.
However, upon receipt of a refusal, the Executing Organization has the right to go to court, and it is possible that the judicial authorities, if the existence of grounds for opening a bank account provided for in clause 5.2 of Art. 7 of Law No. 115-FZ, will side with the Organization and recognize the bank’s actions as unlawful (Decision of the Arbitration Court of the Nizhny Novgorod Region dated October 14, 2016, Resolution of the First Arbitration Court of Appeal dated December 22, 2016, Resolution of the Arbitration Court of the Volga-Vyatka District dated April 19, 2017 No. F01 -878/2017 in case No. A43-15183/2016).
So Supreme Court The Russian Federation, considering a similar situation in its Determination dated August 25, 2017 No. 301-ES17-10939 in case No. A43-15183/2016, noted that despite the fact that in order to refuse to open an account for a bank, only suspicions about the possible completion of a legalization operation by the client income obtained by criminal means, when considering a case in court to challenge the refusal to open an account, the bank must confirm and prove that such suspicions were justified at the time of the refusal to open an account. In addition, the court drew attention to the fact that funds from the federal budget aimed at fulfilling the state defense order cannot, by their legal nature, be income obtained by crime.
Thus, taking into account the above, in order to refuse to open an account, the bank only needs suspicions that the client may have committed a transaction to launder the income obtained from crime. However, if the Organization goes to court, the bank will have to confirm and prove that such suspicions were justified at the time of refusal to open an account.
Does the Executing Organization have the right to transfer money to the supplier from its special account to his current account?
In this situation, the executing organization, included in the cooperation of the lead executor as part of the execution of the state defense order, concluded ordinary contract supplies for the purchase of materials that will later be used by it to fulfill state defense orders. The contract amount is 400,000 rubles. and the supplier does not have a special account opened with an authorized bank. What should I do?
In accordance with paragraph 6, paragraph 1 and paragraph 6, paragraph 2, Article 8 of Law No. 275-FZ, the head executor and executors determine in contracts concluded with other executors a mandatory condition for making payments under such contracts using for each contract a separate account opened in an authorized bank selected by the head executor.
At the same time, before concluding a contract, contractors included in the cooperation of the lead contractor must be notified of the need to conclude an agreement on banking support with the authorized bank selected by the lead contractor (clause 3, clause 1 and clause 3, clause 2, article 8 of Law No. 275-FZ).
When executing a state defense order, the head executor and executors under the state defense order use for settlements under the contract only separate accounts opened by the contractors with whom contracts are concluded in an authorized bank (clause 7, clause 1 and clause 7, clause 2, article 8 of Law No. 275-FZ).
In accordance with paragraphs. “z” clause 2, part 1, art. 8.3 of Law No. 275-FZ, the regime for using a separate account provides for the write-off of funds only to a separate account, with the exception of the write-off of funds from such an account to other bank accounts for the purpose of, in particular, payment by the head contractor of expenses in the amount of no more than five million rubles per month and payment the contractor's expenses amount to no more than three million rubles per month.
Since it is possible to write off funds from a separate account of the performer to other bank accounts in order to pay other expenses in the amount of no more than three million rubles per month, and in the issue under consideration we're talking about about the amount of 400,000 rubles, the executing organization operating within the framework of the state defense order has the right to transfer money to the supplier from its special account to his current account.
We transfer advance payments to employees from a special account
The mode of using a separate account implies the obligation of the Organization to provide to the authorized bank documents that are the basis for drawing up orders for the transfer of salary amounts to employee accounts, as well as orders for the payment of relevant taxes, in particular personal income tax as a tax agent. Is the Organization obliged to comply with these requirements when transferring an advance to employees (wages for the first part of the month)?In accordance with paragraphs. "g" clause 1 art. 8.3 of Law No. 275-FZ, the regime for using a separate account provides for the performance of permitted transactions in accordance with clauses 2, 3, 9 and 10 of Art. 8.4 of Law No. 275-FZ.
At the same time, according to paragraphs. "a" clause 3 of Art. 8.4 of Law No. 275-FZ on a separate account is not allowed, in particular, transactions in the form of transfer (issuance) of funds individuals, with the exception of remuneration, subject to simultaneous payment of relevant taxes, insurance contributions Pension Fund Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund.
In accordance with paragraph 1 of Art. 8.2 of Law No. 275-FZ, the authorized bank in particular has the right to: request from the head executor, executor documents and information provided for by this Federal Law (clause 1, clause 1, article 8.2 of Law No. 275-FZ); exercise control over orders in the manner established by Art. 8.5 of Law No. 275-FZ (subclause 4, clause 1, article 8.2 of Law No. 275-FZ).
When accepting an order for execution, the authorized bank controls: in particular, the compliance of the purpose of payment specified in the order with the contents of the documents submitted by the owner of a separate account and which are the basis for drawing up the order (clause 3, clause 1, article 8.5 of Law No. 275-FZ), as well as compliance with the regime for using a separate account established by Law No. 275-FZ (clause 4, clause 1, article 8.5 of Law No. 275-FZ).
At the same time, when transferring the salary, including for the first half of the month (advance), the Executing Organization must provide the authorized bank with pay slips (another form of primary accounting documentation for accounting for labor and its payment, established by the legislation of the Russian Federation on accounting ), on the basis of which the executor drew up an order for the transfer of funds (Letter of the Bank of Russia dated December 2, 2015 N 12-1-5/2822, dated December 14, 2016 No. 12-1-5/2793).
It should be added that clause 3 of Art. 8.4 of Law No. 275-FZ regulates the procedure for transferring (issuing) funds from a separate account to individuals and cannot regulate the procedure for transferring, in particular, personal income tax (Letter of the Ministry of Finance of Russia dated March 31, 2017 No. 03-04-09/18948 ).
Russian organizations, from which the taxpayer received the income indicated in paragraph 2 of Art. 226 of the Tax Code of the Russian Federation, are obliged to calculate, withhold from the taxpayer and pay the amount of personal income tax, taking into account the features provided for in Art. 226 of the Tax Code of the Russian Federation (clause 1 of Article 226 of the Tax Code of the Russian Federation). In this case, the date of actual receipt by the taxpayer of income in the form of wages is recognized as the last day of the month for which the income was accrued to him (clause 3 of Article 226 of the Tax Code of the Russian Federation).
Tax amounts are calculated by tax agents on the date of actual receipt of income, in this case regarding the payment of salary - on the last day of the month (clause 1, clause 1, article 223 of the Tax Code of the Russian Federation, clause 3, article 226 of the Tax Code of the Russian Federation).
Therefore, taking into account the above, the tax agent, on the last day of the month for which the taxpayer was accrued income in the form of wages, calculates personal income tax and cannot do this earlier.
In this regard, before the end of the month, it is impossible to determine the income received in the form of wages for the month and calculate the tax to be withheld and transferred to the budget upon payment wages for the first half of the month (Letter of the Ministry of Finance of Russia dated March 31, 2017 No. 03-04-09/18948).
Thus, the Contractor Organization, when paying wages for the first half of the month, must provide to the authorized bank payroll statements (another form of primary accounting documentation for accounting for labor and its payment, established by the legislation of the Russian Federation on accounting), on the basis of which the Contractor drew up an order for transfer of funds.
However, at the same time, simultaneously with the order for the advance, the Organization should not provide orders for the payment of personal income tax as a tax agent, since before the end of the month, it is impossible to determine the income received in the form of wages for the month and calculate the tax to be withheld and transferred to the budget.
In March 2016 The next all-Russian conference was held in St. Petersburg with the participation of the heads of the Financial Monitoring Department of the State Defense Order of the Ministry of Defense of the Russian Federation, the Federal Antimonopoly Service of Russia, as well as authorized banks. Conference topic: “State defense order. Basic principles of concluding and executing contracts.”
We invite you to conferences on issues of execution of state defense orders with the participation of leading specialists from the Ministry of Defense and the Federal Antimonopoly Service of the Russian Federation.Subscribe
State Defense Order: Questions and Answers
The material was prepared based on the results of the conference “State Defense Order. Basic principles of concluding and executing contracts"
Organizer of the event, which brought together more than two hundred representatives defense enterprises from all regions of Russia, the Agency spoke marketing communications "Defense Media" and magazine “New defense order. Strategies".
Some questions raised at the conference, the answers to which were given by the director of the Department of Financial Monitoring of the State Defense Order of the Ministry of Defense of the Russian Federation and her deputy Stanislav Viktorovich Spiridonov, we are publishing as a short summary of the meeting.
– From what moment does the executor have the right to dispose of funds from his own separate account?
– The mode of using a separate account is provided for in Art. 8.3 of the Federal Law of December 29, 2012 No. 275-FZ “On State Defense Order”. In the process of fulfilling a state contract, the contractor has the right to dispose of funds from his separate account only for those purposes that are directly provided for by federal law (Clause 2, Part 1, Article 8.3 of Law No. 275-FZ of December 29, 2012). After the authorized bank receives notification from the state customer about the execution of the contract, individual accounts of the contractors are subject to closure, and in this case, the rules provided for in paragraph 2 of Part 1 of Art. 8.3 of Law No. 275-FZ does not apply to transactions involving the write-off of funds.
– In what cases does the contractor have the right to contact an authorized bank with an application to close a separate account?
– There are two ways to close a bank account: 1) after the completion of the government contract and the authorized bank receives notification from the government customer about the execution of the contract. In this case, the authorized bank notifies all performers that the state contract has been fulfilled, and the performers have the right to close individual accounts; 2) after the contractor fulfills his obligations under the state contract, provided that there are no cash balances in a separate account, in accordance with the Civil Code of the Russian Federation, the contractor - a bank client has the right to contact the bank with an application to close a separate account. This procedure does not contradict No. 159-FZ of June 29, 2015 and No. 275-FZ of December 29, 2012 (as amended on July 13, 2015)
– Can a co-executor write off funds (profits) in stages (the phasing is prescribed in the state contract) or do the legal provisions regarding the phased write-off of funds apply only to the main contractor?
– In accordance with paragraphs. G clause 2, part 1, art. 8.3 of Law No. 275-FZ, the main executor has the right to write off funds from a separate account in order to transfer profits in the amount agreed upon by the parties when concluding a government contract, if he partially fulfills the government contract; co-executors have the right to write off funds from a separate account for the purpose of transferring profits only after the contract has been executed and a certificate of acceptance and transfer of goods (certificate of work performed, services rendered) has been submitted to the authorized bank (clause V clause 2, part 1, art. 8.3 of Law No. 275-FZ).
– Does Law No. 275-FZ “On State Defense Order” allow a co-executor to receive profit into his bank account after fulfilling his obligations under a government contract?
– According to the provisions of Law No. 275-FZ, Art. 8.3, p. V, we are talking about the fact that funds as profit can be written off to other bank accounts only after the contract is executed, but the profit must be recorded by the parties in the government contract upon its conclusion. If you have not fixed the amount of profit in the contract, then this issue can be resolved by signing an additional agreement, which is an integral part of the contract.
The practice of enforcement of this norm is ambiguous, and therefore some authorized banks, for example Sberbank PJSC, do not accept the additional agreement as a basis for withdrawing profits under a completed contract, regarding this as a violation of the provisions of Law No. 275-FZ. While Gazprombank JSC accepts such additional agreements. Representatives of the Department of Financial Monitoring of the Ministry of Defense claim that during the transition period, profit fixation through additional agreements to contracts is widespread, and together with lawyers they are preparing a document for banks in which such agreements will be considered legitimate in certain cases.
– Will the contractor be able to receive final payment under the contract in the event of early execution of the government contract?
– The final payment under a government contract is inextricably linked with the execution of the contract and the sending by the government customer to the authorized bank of a notification about the execution of the contract. If the ordering authority does not execute the order ahead of schedule, then difficulties may arise with the final payment before the formal deadline for completing the contact. For the Financial Monitoring Department, the procedure for sending a notification about the execution of a contract and the closure of a separate account is as follows: the state customer informs the Department for Financing of State Defense Procurement about the signing of the acceptance certificate for the state contract, in turn the Department financial security prepares a conclusion on the completion of mutual settlements under the contract. As soon as the zero balance under the contract and the acceptance certificate is confirmed, the Financial Monitoring Department sends a conclusion to the authorized bank. Due to the fact that the state contract was completed ahead of schedule, the state customer is required to provide additional arguments to the Department of Financial Support regarding the early delivery of products.
– Today, legislation does not allow lead contractors to repay loans taken from an authorized bank for the execution of an order ahead of schedule until the contract is fully executed. Will these norms appear in the future?
– No, they won't appear! These rules will replace the rules on compensation for costs incurred. There is no need to delay loan servicing until the end of the contract, and repaying loans from advances from the state customer is contrary to budget legislation.
– Our organization is the main contractor. According to the four-year contract, we receive an advance of 50% of the contract value in the penultimate year. In this case, the bank gives a loan only for 20% of the contract amount. The work concerns the construction of ships. The money that was transferred to a separate account for previous contacts contains profit from them, which we could invest in the implementation of the next contacts with a deferred advance, but we cannot do this until they are completely completed. In this regard, the question is: how much should we cost the ships?
– Negotiate with the Department of State Defense Procurement. At the December board of the military-industrial complex, the Minister of Defense decided to make quarterly advances due to the difficult budget situation. Instead of 1200 billion, the Ministry of Finance allocated 650 billion, and the obligations to the main executors have not been adjusted. The Ministry of Defense cannot give enterprises more than it has. If you can confirm the need for quarterly advances, justifying this with the peculiarities of the production and technological cycle, prove it and negotiate.
Amendments to the law are currently being prepared to provide for the possibility of a phased withdrawal of profits by the lead contractor under government contracts with a long production cycle.
– How are payments made for foreign components approved by the Ministry of Defense?
– « Sberbank made a decision for itself and approved it in a regulatory document. The answer goes like this. The company provides payment in rubles, agreeing on the exchange rate in advance. The purpose of payment indicates the details of the foreign person. The bank will make the conversion into foreign currency. Subject to providing the bank with a transaction passport, the bank will carry out all procedures exchange control and send money abroad. If the transaction passport is not in Sberbank, the money will be credited to a transit account and it will be recorded what kind of money it is and what needs to be done with it in order for the bank to report. In addition to this, Sberbank and the client sign an obligation that if the payment for some reason does not go through, the money will definitely be returned to the same separate account.
– Can the contractor treat the supply of goods under a state defense order as other expenses if the supply amount is up to 3 million rubles? In this regard, can the contractor receive funds from a separate account opened with an authorized bank to a regular current account? Wouldn't this be a violation of the law?
– No, this will not be against the law. If your supplier does not see the need for you to open a special account, then there is no need to open one. This is within the framework of Law No. 275-FZ “On State Defense Order”.
– Please tell me what is included in the concept of other expenses included in the limit of 3 million rubles?
– Initially, the legislator assumed that these were expenses for urgent needs or minor expenses. The issue of reflecting them in accounting depends on the specific case, and these are accounting issues.
– Question about the level of cooperation. Law No. 275-FZ says that the contractor is a supplier of goods and services who is in cooperation with the performers, the head contractor. To what stage does the chain of performers continue?
– As soon as funds “leave” the separate account system, the chain is closed by the recipient of these funds.
– According to information from banks, funds held in separate accounts can be pledged toovernight(minimum balance for one day). Is there really such a possibility?
– Yes, there is such a possibility.
– Are there any regulatory procedures and deadlines for notifying the authorized bank by the Financial Monitoring Department after the head executor receives the final payment?
– Currently, this procedure is being approved by the Ministry of Defense of the Russian Federation. Due to the fact that the regulatory document has not yet been approved, employees of the Financial Monitoring Department personally deliver documents on the execution of the contract to the authorized bank. Now this process can take from one day to several months. Once the official regulations are adopted, it will take a matter of hours.
– What is the need to obtain a license for the production of military products?
– If your entrepreneurial activity aimed at production, maintenance, repair, disposal, service repair weapons and military equipment, then, accordingly, such activities must be licensed in accordance with the Federal Law “On Licensing individual species activities" No. 99-FZ dated 04.05.2011
– Is the maximum amount of profit under a government contract established within the framework of the state defense order?
– According to clause 3, part 1, art. 12 of Law No. 275-FZ The Government of the Russian Federation, in order to ensure and stimulate the implementation of the state defense order in accordance with the law, has the right to establish a maximum profit level when calculating the price of products under the state defense order. In addition, Decree of the Government of the Russian Federation dated April 28, 2015 No. 407 determines the amount of this profit, and it ranges from 1 to 20%. This rule is advisory in nature, but we recommend using it. If these are products of your own production, then the maximum rate should be applied - 20%, if the products are resold, then 1%.
– The government contract has been completed, and we have received notification from the authorized bank that a separate account is being closed. However, there is still a certain amount left in the separate account. What is the fate of this money?
– Separate accounts of the head executor, executors, provided for by Law No. 275-FZ, are subject to closure by the head executor, executors after the authorized bank receives notification from the state customer about the execution of the state contract. The organization has the right to write off the balance of funds in a separate account to any current account, subject to the restrictions established by Part 1 of Art. 8.3 of Law No. 275-FZ, these write-offs do not apply.
– Is it possible to include an arbitration clause in a contract with co-executors and subsequently refer economic (commercial) disputes between co-executors to an arbitration court?
– There is no direct prohibition on this in the legislation.
– Can the contractor independently transfer funds to a separate account opened with an authorized bank?
– Yes, maybe, there are no restrictions on this issue by law. However, debits from a separate account will be subject to any restrictions on the use of separate accounts.
– How do the norms of the federal law on state defense procurement and the norms of the federal law on insolvency (bankruptcy) relate?
– At the moment, the Ministry of Industry and Trade of the Russian Federation is developing a position regarding this issue.
– What is the need to provide an authorized bank with a government contract containing a large amount of technical and other information?
– The bank is obliged to digitize and transfer to a single information system government contract, which means indicating the following: 1) the price of the government contract; 2) information about profits under a government contract; 3) the amount of actual provision under the government contract. Concerning technical specifications– the provision of such information is not provided for by law.
– Is it necessary to reflect the amount of actual expenses (backlog) in the government contract?
– According to Art. 7 of Law No. 275-FZ, the head executor, the contractor has the right to include, in agreement with the state customer (the head executor, executor) in the state contract, contract, a condition for compensation (compensation) after the execution of the state contract, contract within the price of the state contract, contract incurred by the head executor , the contractor, at his own expense, costs for the formation of a stock of products, raw materials, materials, semi-finished products, components necessary to fulfill the state defense order, subject to confirmation by the main contractor, the contractor of the validity of the actual expenses associated with the formation of such a stock. However, in accordance with paragraphs. e clause 2, part 1 art. 8.3 of Federal Law No. 275-FZ, the head contractor, the contractor will be able to receive the amount of actual expenses only after the execution of the state contract, contract and the submission by the head contractor, the contractor to the authorized bank of the certificate of acceptance and transfer of goods (certificate of work performed, services rendered).
– The law requires the opening of separate accounts for each contract; But what if the contract contains several GCIs? Is it possible to open one account under this contract? And in this case, what IGK should be assigned to this contract? Why can’t you pay from a separate account with payment orders indicating these three, four, five IGKs?
– Government contract identifier (GCI) is a unique number assigned to a specific government contract and must be indicated in all contracts, as well as in orders drawn up by government customers, lead contractors and contractors when making payments for a government defense order as part of the supported transaction. The question relates to wholesale purchases; in this case, the GCI is indicated as reference information so that analysts who analyze this information can see that the purchase is wholesale. In this case, the following rule applies: if it is a wholesale purchase from IGK No. 1, then the downstream supplier must have an account opened under IGK No. 1, and as reference information they can indicate what they supply to IGK No. 1, 2, 3, ... , 10, etc.
– Are there any uniform requirements for authorized banks to prepare documents for writing off funds from a separate account after signing a certificate of completion?
– There is currently no uniform instruction for banks, but it should appear. Norms paragraphs. e clause 2, part 1, art. 8.3 of Law No. 275-FZ makes it possible to transfer funds to a current account in another bank after full execution of the contract. What is performance of a contract? The first is full delivery, the second is full payment, the third is the absence of claims against each other. It is enough to submit documents confirming these three facts to the bank.
– There is an inconsistency between Federal Law No. 275-FZ and the Tax Code of the Russian Federation, namely regarding the transfer of wages to employees for the first half of the month. Banks require payment order for withheld personal income tax. The Tax Code categorically prohibits us and promises sanctions for late, including early, transfer of personal income tax to the budget of the Russian Federation.
– Tax service clarified that if tax agents pay personal income tax earlier than the date when the actual full payment of income to individuals was made, there is no fact that the tax amount was not transferred to the budget. In this regard, there is no debt to the budget. Consequently, the actions of tax agents lack the elements of the offense established in Art. 123 Tax Code of the Russian Federation. The Federal Tax Service of Russia also noted that in the situation under consideration, the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in Resolution dated July 23, 2013 No. 784/13 ( Letter Federal Tax Service of Russia dated September 29, 2014 No. BS-4-11/19716).
A detailed study of federal legislation in the field of state defense orders and regulations is becoming especially important today.
The Defense Media agency and the editors of the magazine "New Defense Order. Strategies" regularly hold conferences on topical issues of execution of the state defense order, in which leading specialists from the Ministry of Defense, FAS Russia, the Ministry of Finance, the Federal Treasury and other departments participate.
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