What to do if you do not have time to provide a bank guarantee on time? Refusal of a bank guarantee, further actions Refusal of the guarantee of Federal Law 44.

A bank guarantee is a reliable and profitable guarantee for the execution of a contract. However, sometimes the terms of the contract are such that security must be provided within a minimum period of time and it is not possible to obtain a guarantee in them, since different financial institutions consider applications for obtaining the required document in different terms. If the security is not submitted on time, the contractor risks not only losing the contract, but also being included in the Register of Unscrupulous Suppliers. So what can be done legally in such a situation?

Option 1. Play for time.

The Contract System Act does not provide many legal options for how a contractor can extend the time it takes to provide security. Actually, there is only one universal option in which the supplier cannot be accused of non-compliance with legal requirements. With this option, the contractor needs to carefully study the procurement notice, all design documentation of the contract and other official information. They often contain inaccurate details or other minor discrepancies in the execution of documents. If such errors can be found, the contractor will be able to submit a protocol of disagreements to the customer for approval. In this case, he will have several days (no more than three) to receive a bank guarantee.

Minuses. Firstly, three days may not be enough to complete the required document if you apply for it directly to the bank. Secondly, you need to have high professionalism and experience in order to find errors in the documentation, as well as competently draw up a protocol of disagreements.

Option 2. Changing the provision method.

The contractor can pledge financial assets as security, withdrawing them from the company’s circulation, and then, when a bank guarantee is received, replace the security method and provide the document received late. The law allows you to do this freely without any fines or deductions. If the time required to obtain the guarantee is significant, then Law 44-FZ will even make it possible to revise the amount of the guarantee, since part of the obligations under the contract may already be fulfilled.

Minuses. Firstly, the company may not have enough funds for collateral, especially if the contract amount is large. Secondly, if obtaining a guarantee is delayed, then all this time the financial resources will be frozen and will not be able to work for the benefit of the contractor.

Option 3. Working with a broker.

The RosTender company offers its assistance in obtaining a bank guarantee in the shortest possible time. When working with such a reliable broker, the period for receiving a document is reduced to several days, and if the work takes place on an ongoing basis, then the second and subsequent requests can be provided with a guarantee within just 24 hours!

Thus, you can even combine the first or second option with the third to gain some time during which RosTender will do the rest of the work for you.

The best option would be not to tempt fate and immediately contact our specialists to be guaranteed to receive profitable contract execution on time! !

One of the ways to provide security for an application and execution of a contract is a bank guarantee. This document states that the bank undertakes to pay the customer a certain amount if the participant does not fulfill his obligations. If the guarantee is drawn up incorrectly, it may not be accepted. When it is possible to refuse a bank guarantee under 44-FZ, whether the register of bank guarantees was cancelled, we will tell you further.

Cancellation of the register of bank guarantees

From July 1, 2018, the register of bank guarantees became closed. This does not mean that it ceased to exist. Despite rumors about the abolition of the register of bank guarantees, it is located in the closed part of the UIS and is available only to customers and banks.

To view all the information about the document, in your personal account in the UIS, go to the “Registers” section and select “Register of Bank Guarantees” in the main menu. All information from the list can be downloaded to your personal computer.

In his account, the customer can view the status of guarantees, create a record of refusal to accept the guarantee from the participant and post information about the termination of the supplier’s obligations, which were secured by the document issued by the bank.

Refusal of a bank guarantee by the customer

The customer may refuse the participant if the guarantee does not meet the requirements established in Decree of the Government of the Russian Federation dated April 12, 2018 No. 440. First of all, the guarantee must be issued by a bank from the list of the Ministry of Finance. As of September 1, 2018, there are 193 credit institutions.

Secondly, the document must contain all the necessary information, including the amount of the guarantee, validity period, obligations of the supplier, and a list of documents that must be provided to the customer to receive money. The main condition of the guarantee is its irrevocability.

Refusal of a bank guarantee under 44-FZ is possible in three cases:

information is not in the register of bank guarantees;
a validity period that does not comply with the law is specified;
the content does not correspond to the information specified in the procurement notice.

Conditions of a bank guarantee that you need to read in advance

A bank guarantee is your insurance. If the supplier breaks the contract, the bank will reimburse everything, otherwise what is the point of the guarantee mechanism. The practice of working with guarantees has already been established, the texts of the guarantees are similar, the conditions are standard, no one pays much attention to them anymore. And in vain, because seemingly standard paper may contain conditions that make it useless. Not only will you not be able to get the money, but you will also find yourself embroiled in a long and fruitless lawsuit. This means additional costs and delays in procurement.

The validity period of the guarantee to secure an application must exceed the application submission period by two months, and to ensure the execution of the contract it must exceed the expiration date by at least 1 month.

The customer is obliged to inform the participant of his refusal. In this case, the notification must list all the reasons. This should be done within 3 days. During the same time period, the customer is obliged to make changes to the register of guarantees in the Unified Information System.

Refusal of a bank guarantee in the registry

The customer’s obligation to make changes to the register of guarantees is contained in clause 12 of the Decree of the Government of the Russian Federation of November 8, 2013 No. 1005. If a government agency decides to refuse, within 3 days it includes information about this in the register. Read on to learn how to do this through your personal account.

Refusal of a bank guarantee in the EIS

In the register of bank guarantees, click on the hyperlink “Create information about the customer’s refusal to accept a bank guarantee” on the bank guarantee card on the “Documents” tab. Next, select one of the reasons for refusal. If the guarantee was issued as security for the execution of a contract for major repairs, select the basis from the reference book “Reasons for failure of BG according to RF PP 615”.

A document confirming the refusal must be attached. To do this, in the “Document containing information about the refusal to accept a bank guarantee” block, click on the “Browse” button, select the file and attach it. To save the project, click on the “Save and Close” button, and then on the “Post” button.

To edit information, on the “Register of Bank Guarantees” page, select the desired entry and click on the “Edit” button. Don't forget to save your changes. If information about the refusal was posted by mistake, select the required entry on the “Register of Bank Guarantees” page and click the “Delete” button.

Before posting the refusal data in the UIS, sign it with an electronic signature directly in your personal account. Check the confirmation box and click on the “Sign and Post” button. The registry entry is assigned the status “Refused to Accept.”

For more information on how to refuse a bank guarantee,

Waiver of bank guarantee: sample

The form of this document is not established at the federal level. The customer draws it up on the organization’s letterhead. It is important to indicate information about the purchase, about the members of the procurement committee, write that the guarantee was refused, and also list the reasons why such a decision was made. Be sure to put the date and signature, and certify the document with a seal.

Administrative practice

Let's consider an example from administrative practice. This is the decision of the Federal Antimonopoly Service of Russia dated January 11, 2017 in case No. K-17/17. An auction participant complained to the antimonopoly authority. He was dissatisfied with the actions of the auction commission, which decided to refuse to accept the guarantee. The customer justified it by the fact that:

there is no clause in the document stating that the bank undertakes to pay late fees when issuing funds;
the bank undertakes to pay only those losses that are not covered by the penalty;
the validity period of the document is less than necessary (with a contract validity period of 500 days, the guarantee is valid for only 450 days, although according to legal requirements this period must be at least 530 days).

As a result, the FAS recognized the auction winner’s complaint as unfounded.

Cancellation of bank guarantees 44-FZ

Cancellation of bank guarantees in the public procurement system by banks is not provided for. The credit institution cannot revoke the document. The warranty expires in three cases:

the customer has been paid the entire amount under the guarantee;
the established period has expired;
the customer waived his rights under the guarantee and returned it to the bank (for example, if the contract was never signed).

Attached files

Notice of refusal to accept a bank guarantee.docx

When a customer and a contractor or supplier enter into a deal, the former asks the latter for a bank guarantee. This is a document that confirms that the contractor will perform the work under the contract, and if this is not the case, the bank will pay compensation to the customer.

To issue a guarantee document, the supplier enters into an agreement with the bank and agrees on the document with the customer. If he accepts the guarantee, it comes into force, and if not, the contractor may end up on the list of unscrupulous suppliers and lose further orders.

We tell you why the customer can reject the document and what the contractor should do.

Why does the customer refuse to accept the bank guarantee?

The customer may reject the warranty document if:

the paper is not included in the Unified Register of Bank Guarantees;
its text does not comply with legal requirements;
The guarantor bank does not have the right to issue a document.

About the registry. In the legislation of the Russian Federation, two laws describe the operation of bank guarantees: 44 Federal Laws and 223 Federal Laws. The first regulates procurement by state and municipal budgetary companies, the second - organizations with partial participation of the state or state-owned companies that make purchases with non-budgetary money.

If the purchase is carried out under 44 Federal Laws, the bank, after concluding an agreement with the contractor, is obliged to enter the guarantee into a special register. If this does not happen, most likely the paper is fake and the customer is obliged to reject the document.

223 Federal Law does not require entering a document into the register. If the purchase is carried out in accordance with this law, the absence of paper in the register cannot be a reason for refusal.

About the guarantee text. According to the law, the text may change, but there are mandatory points. For example, the document states:

obligations of the performer under the contract;
amount and validity period of the paper;
that the guarantee is irrevocable;
a list of documents that the customer needs to receive money from the bank.

If at least one of the required points is missing, the customer has the right to reject the guarantee document, because it will be difficult to obtain compensation later.

About requirements for the bank. Not all banks can issue guarantees, but only those that meet the legal requirements for the size of the authorized capital and credit rating. The customer checks whether the bank meets the legal criteria. If not, it rejects the paper.

What should the contractor do if the guarantee is rejected?

If the customer refuses the guarantee paper, the contractor finds out the reason for the refusal and acts depending on the reason.

If the customer refuses because the document is not in the Unified Register, the contractor asks the bank for clarification. Sometimes guarantees do not get into the register due to technical problems on the bank’s side - then the executor asks the bank to add the paper to the register and informs the customer about this. If this is not the case, the document is probably fake. Then the customer tries to quickly issue another paper, and sues the scammers.

If the customer rejects the document due to incorrect text, the contractor must urgently issue a new document or, in return, with the consent of the customer, provide a security deposit. Then the guarantee amount will have to be paid immediately from your own funds.

If the supplier knowingly sends the customer false or incorrectly executed paper, is included in the Register of Unscrupulous Performers.

If the performer believes that he was included in the register unfairly, he can challenge the decision in court.

In any case, a rejected guarantee is a risk to the transaction. For example, according to the law, after winning a tender, the contractor has only five days to prepare the guarantee paper. It is extremely difficult to re-issue a document and meet deadlines. In such cases, the deal often falls through, and the contractor spoils his reputation.

How to prove the illegality of the customer’s actions if he rejected a bank guarantee

Answer

Customer requirements for a bank guarantee

When preparing auction documentation, the customer has the right to set his own requirements for the bank guarantee or not to do so. If the beneficiary has not set any additional conditions to the form of the document, then you can follow the bank’s example. If the customer has established additional requirements for the form of guarantee, then they must be fulfilled. It’s true here, in case of detected violations, you can always file a complaint with the Federal Antimonopoly Service.

The customer rejected the bank guarantee: what to do?

Often, beneficiaries do not accept the guarantee due to the fact that banking institutions themselves can enter their own conditions for the payment of funds upon the occurrence of an insured event. Currently, according to Government Decree No. 1005, a list of documentation has been established that the customer must provide to the financial institution for payment of funds in the event of poor performance of the contract, these are:

A payment order or other document that proves that the beneficiary has paid the principal an advance.
Documents that confirm facts of violation of the terms of the transaction.
A document that confirms the powers of the sole executive body.

In addition to these, financial institutions may require other documents to be attached. If the customer decides to reject such a guarantee, then most often the law is on the side of banking institutions, since there is no indication in the Government Decree and Federal Law-44 that this list cannot be supplemented. Thus, if the customer rejects your guarantee in such a situation, then you can safely contact the FAS. Here, however, there may be exceptions in the form of the usual abuses of financial institutions that are trying to extract maximum preferences for themselves. Therefore, it is possible that you may have to prove your case in court. In any case, the customer does not have the right to refuse to accept a guarantee without a full legal assessment of this fact. If you, as a contractor, have made a guarantee document without any violations, then the law will always be on your side.
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BANK GUARANTEE is the last opportunity to reject a participant.

Dear Colleagues! I would like to draw your attention to the following points when issuing a bank guarantee (hereinafter - BG) for signing a contact.

First: After you have received the BG project from your broker or bank and sent this project to the customer for review and approval by email, do not expect feedback from the customer. 44-FZ does not provide for the customer’s obligation to pre-coordinate and approve the BG project. In this case, the customer has only one obligation: to accept or reject the guarantee attached by you in your personal account of the electronic platform.

Secondly: If you nevertheless sent the BG project to the customer’s email for approval, and in response you receive that he does not have to approve anything for you, this is the first signal that the customer does not want to see you as a contractor for the won purchase. And you need to take its design seriously. Since, if the customer rightfully refuses to sign a contract with you due to the provision of an inadequate guarantee, this means for you:

You will lose your contract;

You will lose the amount of the application security, which will go to the customer’s income;

You will end up in the RNP, and you can forget about procurement under 44-FZ for a certain time;

In some cases, it will be difficult for you to return the commission paid to the bank for issuing a guarantee.

So, when applying for a guarantee, you need to pay attention to the fact that it must:

Be in the BG register, which is located on the Internet;

Comply with Article 45 44-FZ and articles of the Civil Code of the Russian Federation;

Comply with the requirements of the notice, procurement documentation and draft contract.

Until you check all the clauses of the guarantee for full compliance with the auction documentation and the norms of the law, under no circumstances agree with the broker and the bank to issue such a guarantee and do not pay a commission. If an improper financial statement is filed and negative consequences occur, you will only have yourself to blame. The broker and the bank withdraw themselves at the moment, citing the fact that you yourself agreed on the issue of such a guarantee and will be absolutely right.

Real-life example: The presentation by the winner of a purchase as security for a BG, the payment for which is limited to the amount of the security, is a legal basis for the customer to refuse to conclude a contract. Decision No. 2-57-1371/77-18 dated January 30, 2018 of the Procurement Control Commission of the OFAS Moscow.

To summarize, we can say that the best and safest way to secure a contract at the moment is to transfer funds. But if, for a number of reasons, this method of security is not possible, double-check all the clauses of the guarantee for its compliance before issuing.