Is it legal not to accept a bank guarantee? The customer rejected the bank guarantee: what to do? The customer rejected the bank guarantee, what should I do?
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.
You can ask additional questions via the feedback form
1. Customers, as security for applications, execution of contracts, and guarantee obligations, accept bank guarantees issued by banks that meet the requirements established by the Government of the Russian Federation and included in the list provided for in Part 1.2 of this article.
(see text in the previous edition)
1.1. When establishing requirements for banks, the Government of the Russian Federation establishes requirements for the size of the bank's own funds (capital) and the level of credit rating assigned to a Russian credit organization by one or more credit rating agencies, information about which is included by the Central Bank of the Russian Federation in the register of credit rating agencies, according to national rating scale for the Russian Federation in accordance with the methodology, the compliance of which with the requirements of Article 12 of the Federal Law of July 13, 2015 N 222-FZ “On the activities of credit rating agencies in the Russian Federation, on amending Article 76.1 of the Federal Law “On the Central Bank of the Russian Federation” (Bank of Russia)" and the recognition as invalid of certain provisions of legislative acts of the Russian Federation" was confirmed by the Central Bank of the Russian Federation.
1.2. The list of banks that meet the established requirements is maintained by the federal executive body for regulating the contract system in the field of procurement based on information received from the Central Bank of the Russian Federation, and is subject to posting on the official website of the federal executive body for regulating the contract system in the field of procurement in the information telecommunications network "Internet". If circumstances are identified indicating that a bank not included in the list meets the established requirements or that a bank included in the list does not comply with the established requirements, such information is sent by the Central Bank of the Russian Federation to the federal executive body for regulating the contract system in the field of procurement within five days from the date of identification of these circumstances to make appropriate changes to the list.
2. The bank guarantee must be irrevocable and must contain:
1) the amount of the bank guarantee payable by the guarantor to the customer in the cases established by Part 15 of Article 44 of this Federal Law, or the amount of the bank guarantee payable by the guarantor to the customer in the event of improper performance of obligations by the principal in accordance with Article 96 of this Federal Law;
(see text in the previous edition)
2) obligations of the principal, the proper fulfillment of which is ensured by a bank guarantee;
3) the obligation of the guarantor to pay the customer a penalty in the amount of 0.1 percent of the amount payable for each day of delay;
(see text in the previous edition)
4) the condition according to which the fulfillment of the guarantor’s obligations under the bank guarantee is the actual receipt of funds into the account on which, in accordance with the legislation of the Russian Federation, transactions with funds received by the customer are recorded;
(see text in the previous edition)
6) a suspensive condition providing for the conclusion of an agreement for the provision of a bank guarantee for the obligations of the principal arising from the contract at its conclusion, in the case of a bank guarantee being provided as security for the execution of the contract;
7) the list of documents established by the Government of the Russian Federation, provided by the customer to the bank simultaneously with the requirement to pay the amount of money under the bank guarantee.
3. In the case provided for by the notice of procurement, procurement documentation, draft contract concluded with a single supplier (contractor, performer), the bank guarantee includes a condition on the customer’s right to indisputably write off funds from the guarantor’s account if the guarantor fails to do so on time the customer’s demand for payment of a sum of money under a bank guarantee, sent before the expiration of the bank guarantee, has not been fulfilled for more than five working days.
ConsultantPlus: note.
Part 3.1 art. 45 (as amended by the Federal Law of December 27, 2018 N 502-FZ) applies to procurements for which notices are posted and invitations are sent after 07/01/2019, and by agreement of the parties - to relations under contracts for which procurement notices are posted and invitations are sent until 07/01/2019.
3.1. A reduction in accordance with parts 7 and 7.1 of Article 96 of this Federal Law in the amount of security for the performance of a contract provided in the form of a bank guarantee is carried out by the customer by waiving part of his rights under this guarantee. In this case, the date of such refusal is recognized as the date of inclusion of the information provided for in Part 7.2 of Article 96 of this Federal Law in the relevant register of contracts provided for in Article 103 of this Federal Law.
4. It is prohibited to include in the terms of a bank guarantee a requirement that the customer submit to the guarantor judicial acts confirming the principal’s failure to fulfill the obligations secured by the bank guarantee.
5. The customer reviews the received bank guarantee within a period not exceeding three working days from the date of its receipt.
(see text in the previous edition)
6. The grounds for refusal to accept a bank guarantee by the customer are:
1) lack of information about the bank guarantee in the registers of bank guarantees provided for in this article;
(see text in the previous edition)
3) non-compliance of the bank guarantee with the requirements contained in the notice of procurement, invitation to participate in determining the supplier (contractor, performer), procurement documentation, draft contract, which is concluded with a single supplier (contractor, performer).
7. In case of refusal to accept a bank guarantee, the customer, within the period established by part 5 of this article, informs the person who provided the bank guarantee in writing or in the form of an electronic document, indicating the reasons that served as the basis for the refusal.
(see text in the previous edition)
8. A bank guarantee used for the purposes of this Federal Law, information about it and the documents provided for in Part 9 of this article must be included in the register of bank guarantees located in the unified information system, with the exception of bank guarantees specified in Part 8.1 of this article. Such information and documents must be signed with an enhanced electronic signature of a person authorized to act on behalf of the bank. Within one business day after such information and documents are included in the register of bank guarantees, the bank sends to the principal an extract from the register of bank guarantees.
(see text in the previous edition)
8.1. The information on bank guarantees provided for in Part 9 of this article is not posted on the official website, and when purchasing goods, works, services, information about which constitutes a state secret, is included in a closed register of bank guarantees, which is not posted in the unified information system and on the official website .
(see text in the previous edition)
8.2. Additional requirements for a bank guarantee used for the purposes of this Federal Law, the procedure for maintaining and placing in the unified information system the register of bank guarantees, the procedure for forming and maintaining a closed register of bank guarantees, including the inclusion of information in it, the procedure and deadlines for providing extracts from it, The form of the request for payment of a sum of money under a bank guarantee is established by the Government of the Russian Federation.
9. The following information and documents are included in the register of bank guarantees and the closed register of bank guarantees:
(see text in the previous edition)
1) name, location of the bank that is the guarantor, taxpayer identification number or, in accordance with the legislation of a foreign state, an analogue of the taxpayer identification number;
14.10.2014 18:25
Friends, colleagues, listeners, readers, good afternoon. I am pleased to present a new work that will be very useful to you. I think everyone agrees that GOSTORGI is a very financially intensive area. By the way, this scares off many potential bidders, since the STATE ORDER requires the withdrawal of a very decent amount from the company’s turnover to ensure participation in trading procedures. With all this, there is a certain proportion here that works approximately as follows: “The more you participate, the more you invest, the more you invest, the more you earn.” Something like this! Further, moving to more and more expensive electronic auctions and open competitions, at some point any participant understands, no matter how much they would like to, they will have to use some other tool to ensure participation. I would like to remind all readers that there are only two tools in GOSZAKAZ that will help you secure a trade application and a government contract. This is money and a bank guarantee. Now to the rules. Security for a government contract can be provided in the form of a bank guarantee or in cash. The choice is yours. The application can be secured in two ways, but here you need to look at the type of procedure. ATTENTION! Security for an auction application can only be deposited in the form of funds to the account of the electronic platform where the electronic auction itself takes place. Security for the competitive bid, in turn, can be provided in two ways - in the form of cash, as well as in the form of a bank guarantee. Now look very carefully at the next slide:
But all of the above is strictly regulated in the Federal Contract System, but what about tenders for state-owned companies and state-owned corporations. The most optimal way to secure a government contract under Federal Law 223-FZ is a bank guarantee. It is not a form of payment between a banking institution and a client, but a means for fulfilling established agreements. The main essence of this document can be described as follows: its conclusion occurs if the supplier fulfills the terms of the government contract properly, and the bank bears financial responsibility for this.
Differences in obtaining bank guarantees under 44-FZ and 223-FZ.
Law 223-FZ “On the Procurement of Goods” is considered a framework and more loyal in relation to customers and potential suppliers than Law 44-FZ “On the Contract System”, because it prescribes only general requirements for public procurement, and does not represent their implementation great complexity. In turn, the newly introduced law 44-FZ is procedural and includes a significant number of clear rules for conducting government procurement procedures for both government procurement participants and banks.
Directly receiving a bank guarantee under both laws differs in several significant points:
. According to Law 44-FZ, entering guarantees from the bank into the unified register of bank guarantees based on the UIS (unified information system) is a mandatory requirement. Let's look below.
Without fulfilling this requirement, the customer is obliged to reject the warranty. But the customer may have more than one reason for rejecting the BG (bank guarantee). Now look carefully below.
DON'T FORGET - REJECTION OF THE BANK GUARANTEE IS A REASON FOR REFUSAL TO CONCLUSION OF THE CONTRACT! BE CAREFUL!
The Federal Treasury of the Russian Federation maintains the register of bank guarantees. For comparison: 223-FZ does not oblige to register guarantees from a bank in a unified register.
. According to the Law “On the Contract System”, it is possible to obtain a bank guarantee only in certain categories of banks - those financial organizations that are included in the general list of those banks in the Russian Federation that meet the requirements for servicing government contracts. The main criteria for such banks are the following: the bank’s financial assets must be at least 1 billion rubles, the bank must have a license and operate for at least 5 years. By order of the Ministry of Finance of Russia No. 127 dated December 18, 2013, each bank has its own identification code of a certain structure. In turn, Law 223-FZ does not put forward such a requirement, i.e. The bank providing the guarantee is not necessarily included in the above-mentioned Register of Banking Institutions. By the way, quite often customer companies themselves put forward serious conditions for the bank. For example, such a requirement could be the mandatory inclusion of a bank in the list of the 50 most reliable in the country or even in the top 10 in the list of the Ministry of Finance.
. If the price of a government contract is higher than 50 million rubles, then according to law 44-FZ, securing the contract with a bank guarantee should be from 10 to 30% of the primary (maximum) cost. However, Law 223-FZ does not oblige bidders to ensure the amount of the contract, and in general, according to this law, its establishment is not necessary.
Bank guarantees and their types.
As mentioned above, the Federal Law “On the Procurement of Goods” provides for 3 main types of bank guarantees:
1. Providing an application for participation in an auction or competition from a potential supplier.
2. To return the advance.
3. Ensuring the execution of a government contract.
There are also requirements for the bank guarantee itself, see below.
What should a bank guarantee be under 223-FZ?
The procedure for obtaining a guarantee from a bank according to Law 223-FZ has a number of requirements:
. The bank guarantee must be of only one type - irrevocable.
. It must indicate the period of the bank guarantee during which it is valid.
. The customer must either accept it or reject it within 3 days.
. It must clearly indicate the amount of money to be paid to the customer in the event that the supplier does not fulfill the terms of the contract.
. It must include a list of all the duties of the principal for which it is issued. We turn to the Civil Code:
Advantages of a bank guarantee.
It is safe to say that in the framework of public procurement, a bank guarantee agreement acts not only as a means of protection against the actions of unscrupulous bidders, but also provides guarantees that even if difficulties or problems arise during tender procurement, the interests of the government customer will still be satisfied.
Today, one of the most important and common requirements that customers put forward to potential suppliers is the provision of a bank guarantee. At the same time, even if the government customer did not put forward this condition as urgent, obtaining guarantees from the bank would be reasonable and beneficial. This can be motivated by the following:
. the cost of obtaining a guarantee is less than for a commercial loan;
. a bank guarantee does not prevent you from taking out a loan;
. you can get a deferment on payments from the bank without increasing the price of the bank guarantee;
. you can use advance payments if there is a guarantee;
. the number of financial risks in case of obtaining a guarantee is sharply reduced.
Amount of guarantee and its price.
Determining the size of a bank guarantee is purely individual for each individual company participating in tender procurement. It depends on the contract price. Based on this, it follows that each banking institution independently calculates the amount of the guarantee, however, its maximum amount, according to current legislation, should not be more than 10% of the bank’s total financial reserve.
The determining parameter by which the size of the bank guarantee is established is the commission of the banking organization. Traditionally, it is equal to 2-10% of the total guarantee amount. Other factors also influence the price:
. subject of guarantee;
. period of its validity;
. provision and its availability.
How to reduce the cost of the warranty?
You can reduce the price of a bank guarantee in several traditional ways:
. open a bank account in this financial institution;
. register a pledge on this or that property owned by an organization that is applying to participate in a competitive bidding or auction;
. in this case, bills of exchange or deposit funds can also play the role of collateral.
As you can see, the law provides supplier companies with a fairly wide choice of ways to profitably obtain bank guarantees. The feasibility of obtaining it for tender participants is obvious and justified. Thus, a bank guarantee, a sample of which can be found on the official websites of banking institutions, is issued without difficulty and large costs for the company.
That's probably all for today! Thank you for your attention. Good luck in GOSTORGA!
Do you want to win GOSTORGI? Do you want to see your company among the winners of the tender? Contact us and you will learn to earn much more at GOSTORGA and become a qualified tender specialist! You can study without leaving your home, in accordance with all laws regulating PUBLIC PROCUREMENT. Highly qualified teachers and a welcoming atmosphere will make learning simple and very effective. During the training process, the latest software is used, which allows you to see perfectly, hear perfectly, and make adjustments to presentations. The teacher uses the latest versions of teaching materials from the Ministry of Economic Development and the Federal Antimonopoly Service of Russia. Our courses have the highest density of material delivery in relation to other training centers. As a professional, you will leave everyone behind you !
Very often, companies ask the question: who is responsible for compliance of the guarantee with the provisions of the Contract System Law - the bank or the procurement participant? The judges gave their answer following a lengthy trial.
The customer did not accept the bank guarantee
The company won the electronic auction and applied to the bank for a guarantee. The credit institution issued it and debited the amount of the commission from the client’s account.
However, the customer refused to accept the security and believed that the winning bidder was avoiding the deal. The institution explained that the guarantee does not contain a suspensive condition, which is stated in paragraph 6 of part 2 of the Federal Law of April 5, 2013 No. 44-FZ (hereinafter referred to as the Law on the Contract System).
In addition, the document did not provide for the customer’s right to an undisputed write-off of funds at the expense of the guarantor (Part 3 of Article 45 of the Law on the Contract System).
The company, in turn, returned the guarantee to the bank by issuing an acceptance certificate. But she was unable to get the commission she paid back. I had to go to court.
The court of first instance supported the bank
In rejecting the claim, the judges referred to the Civil Code of the Russian Federation. They explained that when forming a guarantee, the bank proceeds from the needs of the procurement participant and the requirements of the law.
In this case, the parties signed an additional agreement that set out the terms of the bank guarantee. The return of the commission was not provided for either by law or by the agreed terms.
The company won the appeal
However, the auction winner did not give up and filed an appeal. This time the decision was made in his favor.
Digest from SVD. Results of procurement 44-FZ, 223-FZ for 2018.
Top regions for 2018 by the amount of procurement placed under 44-FZ, under 223-FZ. In 2018, 3,237,092 notices were posted for a total amount of 7,995.47 billion rubles under 44-FZ and 1,147,675 notices for a total amount of 14,990.13 billion rubles under 223-FZ. Placed purchases...
Tender outsourcing
Tender outsourcing is the assignment of the duties of a specialist in the field of procurement to support another organization (remote support). Let's look at the reasons why you should not choose your own tender department, but outsource its functions. Reason #1...
Subtleties of STATE ORDER Issue 5: Procurement for the maintenance of medical equipment
In practice, when it comes to purchases for the maintenance of medical equipment, the winners are affiliated companies or “subsidiaries” of the manufacturers of this medical equipment. The customer establishes the following requirement in the auction documentation: Providing copies upon signing...
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.
