If the customer does not accept the bank guarantee. Useful tips on issuing bank guarantees The customer rejected the bank guarantee and remuneration

The Law on Public Procurement in some cases provides for the need for the supplier (contractor, performer) to provide a bank guarantee as security for the execution of the contract. But often customers use this security instrument for their own purposes in order to “weed out” unwanted applicants for concluding a contract. And for suppliers, a bank guarantee not accepted by the customer threatens with negative consequences in the form of inclusion in the register of unscrupulous suppliers, as well as financial losses. How to get the “correct” bank guarantee under 44-FZ? How to avoid inclusion in the register of unscrupulous suppliers if the guarantee is still not accepted?

In what cases is a bank guarantee required?

Federal Law 44 provides for two cases of providing a bank guarantee:

securing an application for participation in determining the supplier;
ensuring the execution of the contract.

In general, the requirements for a bank guarantee are identical in both cases, with rare exceptions. We'll talk about this below.

In what form should a bank guarantee be issued within the framework of 44-FZ?

The Government of the Russian Federation, in its Resolution No. 1005 of November 8, 2013, established that a bank guarantee within the framework of 44-FZ can be issued in the following form:

on paper (if the guarantee is issued on several sheets, then it must be numbered, stitched and sealed by the bank);
an electronic document signed with a non-qualified electronic signature.

Which bank should I contact to issue a guarantee under the public procurement law?

For government procurement, a bank guarantee from any bank is not suitable. Article 45 of the law on public procurement establishes that a guarantee in this case can only be obtained from a credit institution that is included in the list of the Ministry of Finance. On the official website of the financial department you can find a list of banks (http://minfin.ru/ru/perfomance/tax_relations/policy/bankwarranty/#) that can issue a bank guarantee. Check the website immediately before applying for a guarantee, as the list of credit institutions changes regularly.

What should be reflected in a bank guarantee under 44-FZ?

The bank guarantee must be irrevocable and include the following conditions:

the amount of the bank guarantee that will be paid to the customer by the bank in cases specified by law;
obligations of the supplier (contractor, performer), which will be secured by the credit institution under a bank guarantee;
the bank's obligation to pay a penalty to the customer in the amount of 0.1% of the amount that must be transferred by the credit institution for each day of delay;
a condition under which the bank’s obligation to pay a sum of money to the customer is considered fulfilled after the money arrives in the customer’s account;
a list of documents that must be provided by the customer to the bank in order to receive payment under a bank guarantee (the list is specified in Decree of the Government of the Russian Federation No. 1005 of November 8, 2013);
a suspensive condition, which provides for the need to sign an agreement on the provision of a bank guarantee for the supplier’s obligations (introduced in the case of a bank guarantee upon conclusion of the contract);
validity period of the bank guarantee. If the guarantee secures the application, then such period is at least 2 months from the deadline for filing applications; if the guarantee is related to obligations under the contract, the guarantee period must be at least 1 month longer than the contract validity period;
a condition regarding the customer’s right to undisputed debiting of a sum of money from the bank account if the credit institution has not voluntarily transferred the required amount within 5 working days at the customer’s request (if such a condition is specified in the procurement documentation);
a condition on the customer’s right to transfer the right to claim under a bank guarantee if the customer changes;
the condition that the bank itself must pay the costs of transferring money to the customer under a bank guarantee;
a condition on the customer’s right to submit a written demand to the bank for payment of money if the supplier fails to fulfill its obligations.

Also, regulations establish a number of conditions that are prohibited from being included in a bank guarantee:

the bank’s right not to pay under a bank guarantee if the customer does not send a notice to the supplier of his violation of the terms of the contract or of termination of the contract (exception - if such a condition is included in the procurement documentation);
the customer’s obligation to provide the bank with a report on the execution of the contract;
other documents that are not specified in Decree of the Government of the Russian Federation No. 1005, provided together with the request for payment of the amount under the bank guarantee;
a condition on the customer’s obligation to provide the bank with a judicial act regarding the supplier’s failure to fulfill obligations under the contract.

Note! No matter who you receive the bank guarantee from, be sure to independently check its availability in a special register. This register of bank guarantees can be found on the government procurement website (http://www.zakupki.gov.ru/epz/bankguarantee/extendedsearch/search.html).

For what reasons may a customer not accept a bank guarantee?

The law provides only three grounds when a customer can reject a provided bank guarantee:

the register of bank guarantees does not contain information about the presented guarantee;
the bank guarantee does not meet the requirements reflected in the law on public procurement (parts 2 and 3 of article 45);
the bank guarantee does not meet the requirements specified in the procurement documentation.

The Treasury of Russia, in a letter dated May 19, 2015 No. 07-04-05/09-319, indicated that the specified list of grounds for refusal is exhaustive. Therefore, the customer cannot reject the bank guarantee solely because it does not correspond to the form (sample) reflected in the procurement documentation.

Judicial practice on a bank guarantee within the framework of 44-FZ

The consequences of the customer’s failure to accept a bank guarantee can not only become a basis for refusal to conclude a contract, but also negatively affect the reputation of the supplier. After all, the law clearly states that a participant who does not provide a bank guarantee on time is considered to have evaded concluding a contract. And this is a direct path to the register of unscrupulous suppliers. But there are situations when procurement participants, even from such seemingly hopeless situations, manage to find a way out in court. Let's tell you more about them.

Example 1. The customer did not accept the bank guarantee - the participant sued the bank that issued the guarantee for losses and lost profits.

9 AAS sided with the procurement company, which, due to a bank guarantee that did not comply with the provisions of the law, was deprived of the opportunity to conclude a contract. At the same time, the contract amount was about 6 million rubles, and for providing the guarantee the company paid the bank a commission of about 200 thousand rubles. The customer, having examined the bank guarantee, came to the conclusion that it does not comply with the law on public procurement, because it lacks a number of mandatory conditions. In this regard, the participating company was denied a contract.

When satisfying the demands of the participating company for the recovery of damages and lost profits, the court took into account that this company took part in the approval of the bank guarantee. Therefore, the amount of losses and lost profits was reduced by half.

Source – Resolution 9 of the AAS dated 07/05/2016 in case No. 09AP-26750/2016.

Example 2. The court declared illegal the inclusion of a procurement participant in the register of unscrupulous suppliers (abbreviated as RNP), since the company took the necessary actions to replace the bank guarantee that did not comply with the law with a new one.

The customer did not accept the participant’s bank guarantee due to the absence of a suspensive condition on concluding an agreement for the provision of a bank guarantee. The antimonopoly authority, in turn, made a decision to include the company in the RNP as a participant who had evaded concluding a contract.

The court indicated that when included in the register, it is necessary to take into account not only the lack of security for obligations under the contract (bank guarantee), but also the dishonesty of the participant’s behavior - the commission of deliberate actions (inactions) that would contradict the law on public procurement. At the same time, the procurement participant had no intention of evading concluding the contract and immediately, as soon as it became known about the rejection of the bank guarantee, he sent the customer an explanation from the bank and a new bank guarantee.

Source – Resolution of the Administrative Court of the West Siberian District dated December 24, 2015 in case No. 45-10215/2015.

When issuing a bank guarantee directly from a bank or through an intermediary, remember that in any case, responsibility for the correctness of execution and its compliance with legal requirements lies, first of all, with the procurement participant.

Example 3. The court declared legal the inclusion of a procurement participant in the RNP due to the provision of a bank guarantee that did not comply with the provisions of the law. Issuing a guarantee through an intermediary does not relieve responsibility from the procurement participant.

The customer rejected the bank guarantee due to the fact that it was not included in the register of bank guarantees under 44-FZ. The court pointed out that the company participating in the procurement should have exercised due diligence when issuing a bank guarantee through an intermediary and independently checked its availability in the register on the official government procurement website.

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 has been 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

In this article we will look at a situation where a customer refuses to accept a bank guarantee as security for the performance of a contract. In practice, such situations occur quite often and can lead to the most unpleasant consequences for the performer.

What does the customer’s refusal to accept the guarantee mean for the contractor? The answer is obvious - nothing good. Before the end of the period established by law for concluding a contract, the contractor must provide another bank guarantee (and there is a high probability that there may not be enough time for this) or ensure the execution of the contract in cash. The funds can be borrowed, but it is hardly possible to obtain a bank loan on acceptable terms in a short period of time. This means that, most likely, you will have to secure the contract with your own funds. And if they cannot be found, then the contractor is expected to refuse to conclude the contract, be included in the Register of Unscrupulous Suppliers and lose the funds contributed as security for the application for participation in the tender. The most unpleasant of all of the above is not even the loss of money and the contract that the contractor was counting on, but the damage to the company’s business reputation, which can be fatal for further business.

How should a potential executor of a contract act in such a situation? Experts recommend that the first step is to understand the reasons that prompted the customer to refuse to accept the bank guarantee. And if the refusal is not properly justified, then you should definitely take measures to protect your interests from unlawful actions of the customer.

So, can a customer really refuse to accept a bank guarantee? Yes maybe. But at the same time, the law clearly stipulates the grounds for such a decision. In accordance with Part 6 of Art. 45 of Federal Law No. 44-FZ of 04/05/2013. “On the contract system in the field of procurement of goods, works, services for state and municipal needs,” the customer may refuse to accept a bank guarantee to ensure the execution of the contract only in the following cases:

Let us briefly summarize the above - if the bank guarantee provided by the contractor to secure the performance of the contract meets the requirements of Art. 45 of Federal Law No. 44-FZ, and the requirements of the procurement documentation, the customer has no right not to accept it. Request from the customer a written or electronic document justifying the refusal and appeal it in court.

Let us give several examples of cases involving the customer’s refusal to accept bank guarantees in various courts.

1. The customer did not accept the bank guarantee - the participant sued the bank that issued the guarantee for losses and lost profits.

When considering the appeal 9, the Arbitration Court of Appeal sided with the procurement company, which, due to a bank guarantee that did not comply with the provisions of the law, was deprived of the opportunity to conclude a contract. At the same time, the contract amount was about 6 million rubles, and for providing the guarantee the company paid the bank a commission of about 200 thousand rubles. The customer, having examined the bank guarantee, came to the conclusion that it does not comply with the law on public procurement, because it lacks a number of mandatory conditions. In this regard, the participating company was denied a contract.

Source - Resolution 9 of the Arbitration Court of Appeal dated 07/05/2016 in case No. 09AP-26750/2016.

2. The court declared the inclusion of a procurement participant in the register of unscrupulous suppliers (URS) illegal, since the company took the necessary actions to replace the bank guarantee that did not comply with the law with a new guarantee.

Source - Resolution of the Arbitration Court of the West Siberian District dated December 24, 2015 in case No. 45-10215/2015.

3. The court declared legal the inclusion of a procurement participant in the RNP due to the provision of a bank guarantee that did not comply with the provisions of the law. Issuing a guarantee through an intermediary does not relieve responsibility from the procurement participant.

We draw your attention to the fact that in accordance with Part 8.1 of Art. 45 of the new edition of Law No. 44-FZ “On the contract system in the field of procurement”, from July 1, 2018, the register of bank guarantees in the Unified Information System is not available to procurement participants. Only the purchasing customer can check the presence of a bank guarantee in the register. In this regard, the procurement participant can obtain confirmation of the issue of a bank guarantee by contacting the bank directly. We recommend using for these purposes only phone numbers listed on the bank’s official website. In addition, the guarantor bank, at the request of the procurement participant, is obliged to provide an extract from the register of bank guarantees, which, if necessary, can be transferred to the customer.

Experts from the Credit Insurance Agency recommend that you carefully approach the issue of obtaining bank guarantees. Avoid unreliable intermediaries, no matter what favorable conditions they promise you. Don’t be afraid to spend time studying the tender documentation and checking the layout of the bank guarantee. Be sure to agree on the warranty layout with the customer in advance. Following these simple requirements will help you avoid unpleasant situations. And if the customer unreasonably rejected the guarantee you provided, do not be afraid to defend your interests in court.

Do you want to always be up to date with events -

The refusal of a bank guarantee is generally regulated by Article 368 of the Civil Code of the Russian Federation, which sets out all the requirements for an independent bank guarantee. Therefore, according to the Civil Code of the Russian Federation, such a document must contain the following information:

Details of the guarantor, beneficiary and principal (respectively the bank, customer and executor under the contract;
The amount, as well as the validity period of the BG;
Obligations of the guarantor, as well as conditions for payment of funds under the BG.

Grounds for refusal to accept a bank guarantee under 44-FZ

In addition, Federal Law 44-FZ “On the contract system in the field of procurement of goods, works and services” establishes additional reasons why a bank guarantee should be rejected by the customer. They are listed in paragraph six of Article 45 of the said federal law.

So, the basis for refusal to accept a bank guarantee by the customer is:

The bank to which you entrusted the functions of the guarantor for the financial statement is not on the special list of the Ministry of Finance of the Russian Federation. You can view this list by following the link -http://minfin.ru/ru/perfomance/tax_relations/policy/bankwarranty ;
The BG provided to the customer is not in the special register of bank guarantees for participation in the procurement procedure under 44-FZ. You can find the specified register in the Unified Information System for the procurement of goods, works and services. To go to the search page, you need to click on the following link -http://zakupki.gov.ru/epz/bankguarantee/quicksearch/search.html ;
The conditions, terms and amount specified in the BG do not correspond to the information specified in the procurement documentation, notice and draft contract;
There is no mention in the BG agreement that the bank guarantee is irrevocable;
The obligations of the principal (performer under the contract) are not fully specified in the guarantee or are not specified at all;
The BG does not provide for the payment by the guarantor to the beneficiary (customer) of a penalty in the amount of 0.1 percent for each day of delay in its obligation.

The customer reviews the bank guarantee within no more than 3 working days from the date of its receipt.

If the customer rejects the bank guarantee, he is obliged to notify the guarantor in writing or electronically within the time period specified by law (within 3 working days). Moreover, the specific reasons that caused the rejection of the BG and became the basis for its refusal must be indicated.

The customer rejected the bank guarantee: what to do

Sometimes it actually happens that the customer returns the bank guarantee due to the circumstances stated above. What to do in such a situation? Within the framework of Law 44-FZ, the customer cannot do otherwise, because he faces administrative liability for accepting an “incorrect” bank guarantee as security.

According to this federal law, ensuring the fulfillment of a contract is the direct responsibility of the supplier within the framework of competitive procedures, and therefore “turning a blind eye” to its absence also means running into fines. Therefore, if the customer rejects the bank guarantee, then the only way out of the situation is to ensure the execution of the contract in another way, that is, with another bank guarantee or cash.

In the case of ensuring the execution of a contract, the situation is further complicated by the fact that the winner of the tender must ensure execution, and if he cannot do this in a timely manner, he will be recognized as a participant who has evaded signing the contract. Therefore, the customer can, and often is obliged to, enter information about such a participant in the register of unscrupulous suppliers.

What threatens such a combination of circumstances is “exclusion from participation in government procurement for two years, it is for this period of time that information is entered into the specified register. The requirement that the supplier not be included in the register of unscrupulous suppliers is, of course, not mandatory for all procedures.

However, as a rule, most customers play it safe and always set this requirement. So, a mistake when issuing a bank guarantee can lead to the most disappointing consequences.

Therefore, it is much easier to use the services of a professional broker, who, if something happens, can even quickly issue a new BG. If you are rejected, you will only have two to three days to do this.

Waiver of rights by the beneficiary under the bank guarantee

The Civil Code of the Russian Federation does not provide for the right of the guarantor or principal to terminate or change the BG, unless this is stipulated in the bank guarantee itself (which is done extremely rarely). Therefore, waiver of rights under a bank guarantee is the exclusive prerogative of the beneficiary (customer under the contract).

To formalize this, he sends a letter to the bank notifying that he is waiving his rights. After which the guarantor must notify the principal about this, and the BG agreement will be considered terminated. However, this will only happen if the supplier has fully complied with its terms of the contract.

Please note that there are two more options for review:

Andthe executor under the contract offers collateral instead of the BG;
VThe BG agreement stipulates special conditions, upon the occurrence of which the guarantee ceases to be valid.

Well, at the end, a few words about the refusal to issue a bank guarantee. This has little to do with the topic of this article; it’s just that some entrepreneurs who are little familiar with the Civil Code sometimes confuse these concepts. Refusal to issue a bank guarantee is the bank’s refusal to issue this document to the applicant.

Such cases are also not uncommon, since even the owner of a completely reliable company can incorrectly prepare a package of supporting documents. This is wasted time and the opportunity to end up on the register of unscrupulous suppliers.

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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