Return of a bank guarantee under 44 fl. Bank guarantee in the field of public procurement
The supplier provided a bank guarantee as security for the performance of the contract. The contract has been completed.
The bank guarantee agreement does not provide for the conditions for the return of the bank guarantee to the guarantor or for sending a notice of release from obligations under the bank guarantee. By virtue of this agreement, the bank guarantee is terminated at the end of its term.
When generating information on the execution of a contract, is the customer obliged to indicate information on the termination of the supplier's obligations secured by a bank guarantee? Is it necessary to return the bank guarantee to the guarantor or send him a notice of release from obligations under the bank guarantee?
After considering the issue, we came to the following conclusion:
1. The obligation of the customer to enter in the register of contracts information on the termination of the obligations of the supplier, secured by a bank guarantee, is not established by law.
2. In the absence of specific instructions in the bank guarantee itself or a corresponding agreement with the guarantor, the customer does not need to return the bank guarantee to the guarantor.
Rationale for the conclusion:
1. The information necessary for the formation of the register of contracts concluded by customers (hereinafter referred to as the register) is transferred to the body responsible for maintaining the register, the Federal Treasury (Federal Law of 04/05/2013 N 44-ФЗ "On the contract system in the field of procurement of goods, works , services to meet state and municipal needs" (hereinafter - Law N 44-FZ), clause 1 of the Regulations on the Federal Treasury, approved by the Government of the Russian Federation of 01.12.2004 N 703) by customers without fail (Law N 44-FZ). The formation of information, as well as the exchange of information and documents between the customer and the Federal Treasury, are carried out in accordance with the Rules for maintaining the register of contracts concluded by customers (hereinafter referred to as the Rules), approved by the Government of the Russian Federation of November 28, 2013 N 1084, in the manner approved by the Ministry of Finance of Russia of November 24 .2014 N 136n on the basis of clause 10 of the Rules.
Documents and information to be included in the register of contracts are listed in Law N 44-FZ, as well as in clause 2 of the Rules. So, in accordance with the Law N 44-FZ, paragraphs. "k" Clause 2 of the Rules, the register of contracts includes information on the performance of the contract, including information on the payment of the contract, on the accrual of penalties (fines, penalties) in connection with the improper performance of obligations under the contract by the party to the contract. In addition to this information, by virtue of paragraphs. "k" clause 2 of the Rules, the register also includes information on the occurrence of a warranty event provided for by the contract, and the fulfillment of obligations to guarantee the quality of goods, work, services.
The inclusion in the register of contracts of information on the termination of the obligations of the supplier, secured by a bank guarantee, is not provided for by the above norms.
2. According to Law N 44-FZ, the execution of the contract can be ensured, in particular, by the provision of a bank guarantee issued by the bank and complying with the requirements of Art. 45 of this Law. At the same time, the term of the bank guarantee must exceed the term of the contract by at least one month.
Since N 44-FZ is based, among other things, on the provisions of the Civil Code of the Russian Federation (part 1, article 2 of this law), the norms of the Civil Code of the Russian Federation apply to relations under contracts concluded in accordance with this law, unless N 44-FZ itself provides otherwise . The concept of "bank guarantee" is mentioned in the Civil Code of the Russian Federation in the meaning of "an independent guarantee issued by a bank." By virtue of the Civil Code of the Russian Federation, the expiration of the period specified in the guarantee for which it was issued is an unconditional basis for terminating the obligation of the guarantor to the beneficiary (see FAS of the North Caucasus District dated 10/11/2011 N F08-5108 / 11, Nineteenth AAS dated 03/23/2011 N 19AP-771/11). According to part one of the Civil Code of the Russian Federation, an independent guarantee or an agreement between the guarantor and the beneficiary may provide that in order to terminate the guarantor's obligation to the beneficiary, it is necessary to return the guarantee issued by him to the guarantor. In this case, the termination of the obligation of the guarantor on the grounds specified in paragraphs. 1 and 2, paragraph 1 of this article, does not depend on whether the independent guarantee is returned to him (Part Two of the Civil Code of the Russian Federation). The legislation does not contain other norms regulating relations on the return of an independent (bank) guarantee.
Thus, in the absence of specific instructions in the bank guarantee itself or an appropriate agreement with the guarantor, the customer does not need to return the bank guarantee to the guarantor.
Prepared answer:
Legal Consulting Service Expert GARANT
Chashina Tatiana
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Zolotykh Maxim
The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.
A bank guarantee is a financial instrument designed to ensure the fulfillment of obligations undertaken by one party to another, a kind of "insurance" of the buyer from an unscrupulous seller. Physically, it is a document on paper or in electronic form containing information about the parties to the contractual relationship, contract obligations to be fulfilled, terms of provision, signatures of authorized persons.
The procedure for issuing and using a bank guarantee involves the participation of three parties:
- Principal- a seller, supplier of goods or services, he is also a contractor or performer - an individual or legal entity licensed to carry out a certain type of activity.
- Guarantee- a bank from the list approved by the Ministry of Finance, which is accredited to issue bank guarantees.
- Beneficiary- customer, buyer, recipient of goods or services, he is also the beneficiary.
The purpose of the bank guarantee is to stimulate the supplier to fulfill the agreement with the highest quality in compliance with the agreed deadlines, leaving him the opportunity to operate with working capital. In case of violation of contractual agreements, he will be punished literally with a ruble, and the buyer will be able to compensate for his losses and risks by covering them at the expense of the guarantor. The benefit of the bank is to receive a commission for the publication of a document, its extension or amendment. In the event of a credit debt, the bank receives interest for the entire period of debt repayment by the principal.
Another important point is to eliminate the corruption component in the conduct of auctions, tenders and tenders. The presence of this type of security is mandatory for public procurement, according to Federal Law No. 44-FZ.
Return by "BG"
Among the variety of "BG" in the procedure of state and municipal procurement is most often used tender guarantee , performance guarantee, warranty returnpayment.
To participate in a public procurement tender, the seller submits an application and makes a cash contribution as confirmation of the seriousness of his intentions to the account specified by the customer. The amount of this financial security usually ranges from 0.5% to 5% of the contract price. It happens that the applicant does not have such free funds. In order not to withdraw funds from circulation and, at the same time, not to miss a profitable deal, the supplier can provide collateral bank guarantee .
After the announcement of the results of the tender, all the losers are returned their money. The winner will receive the deposit back only after signing the contract. If suddenly the supplier refuses to sign the contract, the entire mortgage amount will go to the buyer.
If the organization has won the tender, has a full package of duly executed documents, is confident in its product and intends to sign an agreement, it is obliged to provide the customer with bank guarantee of performance of the contract . Without it, the parties will not be able to conclude an agreement. The amount of security can be up to 30% of the declared contract price.
What are the grounds for a return?
Conditions for the return of "BG" and the deposit
A bank guarantee provided as collateral is returned in the following cases:
- The bidder made mistakes or violated the application procedures prior to the start of the auction.
- The supplier withdrew the application for participation before the end of the deadline.
- The customer canceled the definition of the supplier within a reasonable time before the appointed date, i.e. changed his mind about choosing a potential performer for some reason.
- The tender has been completed, the protocols have been drawn up, the supplier has been selected. All, except the winner, receive their deposits back within 3 to 5 days.
- The competition was declared invalid due to court delays or force majeure, which prevented the signing of the contract for more than 30 days.
- The contract was signed, but now it is terminated by mutual agreement of the parties or at the initiative of the customer without any claims on his part, despite the fact that the original conditions may not be met.
- The parties adopted an agreement to replace "BG" with financial support. (In practice, the opposite happens more often: money is exchanged for a guarantee contract).
- The terms of the contract are fully fulfilled by the principal, and the beneficiary does not have any claims.
The return of financial security under 44 FZ (clause 13 of article 44) is not made if:
- The participant who won the tender evades the conclusion of the transaction.
- The participant grossly violated the provisions of the law on tenders, auctions and auctions.
- The deadlines for withdrawing or changing the application have been disrupted.
Such participants earn a bad reputation for themselves and risk being on the list of unscrupulous performers, depriving themselves of the opportunity to enter into lucrative contracts in the near future.
Speaking about the return of the deposit, they usually mean finances. The bank guarantee document itself is not given away, it simply becomes invalid after the terms of the contract are fulfilled.
Conditions for the return of "BG" performance of the contract
The entire period of time during which the contractor must fulfill its obligations, the guarantee agreement is with the beneficiary. However, under certain circumstances, the bank performance guarantee may return to the bank. The provisions on the return, withdrawal and termination of the "BG" are spelled out in the Law on the contract system No. 44-fz.
The law does not provide for a full refund of the guarantee, as it must be irrevocable. Neither the principal nor the guarantor can return or revoke the agreement. This is the main contradiction with the Civil Code of the Russian Federation (paragraph 23 of Article 378), which establishes the reasons for the return of a bank guarantee:
- The customer received the full guarantee amount, which was discussed in the agreement. For example, as compensation for losses due to the contractor's dishonesty.
- Warranty expired , which usually coincides with the term of the concluded contract. If the term of the latter is extended, the customer should follow the change in the period of validity of the agreement. Under an overdue guarantee, the beneficiary loses the opportunity to receive compensation even in court.
- The beneficiary notifies the guarantor in writing that he waives the rights under the agreement and releases the bank from obligations under the guarantee. And.
- The beneficiary, on his own initiative, renounces his rights under the guarantee agreement with the subsequent return of the document to the financial institution .
Obviously, only the beneficiary has the privilege and the opportunity to return the guarantee, refusing the possibility of receiving compensation. In the first three cases, it is not necessary to return the paper carrier to the guarantor.
In addition to these four, there are general reasons for the return of a 44 FL contract guarantee, some of which were mentioned in the list under the conditions for the return of the deposit:
- Execution of the contract in full and on time. The supplier fulfilled all the agreed transactions. The customer is satisfied. All documents, acts of work performed and payment orders were signed. The beneficiary can return the guarantee to the bank.
- Termination of the contract at the initiative of the customer or by agreement of both parties. If there are no claims against the contractor, the guarantee is simply cancelled. If there are unsatisfactory moments, the beneficiary receives compensation for losses at the expense of guarantee funds. And the principal settles with the guarantor. If during the transaction the supplier received an advance payment under a bank guarantee, the return algorithm is similar.
The period for the return of the bank guarantee is governed by the provisions of the concluded agreement and can last up to 45 days. In practice, this period is reduced to 5 days.
Conditions for withdrawing a guarantee by a bank
The bank should not interfere in the relationship between the supplier and the buyer. He simply undertakes to pay if the appropriate event comes. The essence of this financial instrument is to give the interacting parties a sense of constancy and reliability. The ability to revoke a bank guarantee is virtually nil, unless the guarantee agreement specifies the conditions for its revocation.
More often they talk about factors that exclude the withdrawal of a bank guarantee:
- The obligations of the principal have been fulfilled in full or in part;
- The parties decided to amend the original version of the agreement;
- The transaction is declared invalid;
- It turned out that the debtor used the received funds for other purposes.
The maximum that can be done is to reduce the amount of security when a compromise is reached between the parties. But usually this is contrary to the interests of the customer.
When does BG stop?
Reasons for the termination of the bank guarantee
In order of importance, in the first place is the contract between the contractor and the beneficiary. The transaction between the guarantor and the principal has a lower priority, but it is unlikely that it will be possible to neglect the terms of this document. The letter of the law defines the following circumstances under which it is possible to cancel a bank guarantee:
- All three parties agree on the transfer to the interested party compensation in the form of money or property.
- The guarantor and the beneficiary are the same person. The phenomenon is extremely rare, but sometimes banks also act as customers in competitive purchases.
- The warranty agreement includes new conditions which were absent in the previously signed document.
- Circumstances have arisen that unreal fulfillment of obligations under the guarantee.
- Occurs liquidation guarantor (bank) or beneficiary as legal entity.
The guarantor must notify the principal of the fact of the termination of the guarantee agreement: it may contain a clause on the partial refund of the commission paid to the bank for the execution of the agreement. The amount is calculated from the number of days the guarantee is valid and the days remaining until the end of its validity period. There is also the possibility of refunding VAT to the contractor, subject to certain conditions.
When issuing a bank guarantee for the first time, the supplier must take into account the fact that the time for issuing a document may exceed the deadline for submitting an application for a tender. Some intermediary companies offer their services to speed up the process of identifying a client and obtaining a warranty agreement for a small fee.
A prerequisite for the supplier to participate in the auction and sign a contract with the customer is to provide security for the performance of the contract.
It can be paid either with personal funds or with a bank guarantee. This amount insures the customer in case of improper performance or non-performance by the supplier of the terms of the contract, it compensates for the losses that he may incur.
However, legal norms protect not only the interests of the customer, but do not leave aside the contractor, giving him the opportunity to return the security. What is the algorithm and duration of this procedure?
Reasons for the return of the contract security under 44 FZ
It is important to remember that, first of all, the return of collateral is carried out at the end of the contract. After signing a certain package of documents, the contractor is obliged to return the previously deposited funds.
It can also be caused by a change in the provisioning method.
For example, replacing own funds with a bank guarantee.
But there are such situations as the termination of relations by mutual agreement or only at the initiative of the customer. In this case, the parties are also obliged to issue a return of the contract security. Although, if the state-owned enterprise has any claims against the supplier, then by law it can use the security deposit or part of it in order to compensate for the losses it has incurred.
At the same time, 44 FZ does not regulate the issue of the exact amount of the penalty that can be withdrawn from the supplier. This moment remains entirely at the discretion of the customer, taking into account the terms of the contract.
Terms of return of the bank guarantee
They are regulated by the contract itself and the auction documentation and can be up to 45 days.
However, most often it happens that funds are credited to the account within 5 days after the parties have signed all the documents stipulated by the agreement, and a return letter has been provided (according to a general template or in any form). And if a situation arises when customers “pull” in order to return the collateral or even refuse to give it back, it is necessary to immediately go to court.
During a multi-lot auction, the enforcement of the contract, both with own funds and with a bank guarantee, is paid to each customer separately (which is rather burdensome for the supplier, since he has to issue many bank guarantees (or payment orders) for different amounts). Each state-owned enterprise submits a draft contract and, after receiving funds, signs it.
In this case, the return of the security for the performance of the contract is carried out separately from all participants in the procurement.
All customers must be notified. This happens by sending a letter by mail or handing it personally to the customer. If the funds were deposited from the account of third parties (another legal entity, a lending organization), then payment orders are also attached to this application, which indicate from which legal entity or individual entrepreneur the payment was made.
Therefore, in order to avoid difficulties in order to return the money, as well as save time, contact the experts.
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If the supplier violated the obligation, did not deliver the goods in full, the customer charged a penalty, the supplier paid everything, then the customer must return the contract security in full?
Answer
Thus, the Customer has the right to withhold a penalty from the security for the performance of the contract if the Supplier violated the terms of the contract during its execution (at the same time, it is better that the contract contains a condition that you withhold money from the security if the counterparty violates the contract). If the participant himself pays the penalty to the Customer, then the Customer must return to him the security for the performance of the contract (pledge of funds) back in full.
Rationale
Recommendation: How to ensure the execution of a contract under 44-FZThe customer does not sign the contract until he receives the guarantee from the winner. Moreover, the counterparty himself chooses in what form to deposit the contract security - to provide a bank guarantee or transfer money to the customer's account. The procedure in which the contract is provided is regulated by Article 96 of Law No. 44-FZ.
Include the requirement to provide contract security in the notice or invitation to participate in the procurement, documentation and draft contract. Such a rule is spelled out in part 1 of article 96 of Law No. 44-FZ.
What amount of contract security to establishThe size of the contract security will be from 5 to 30 percent of the NMCC. Law No. 44-FZ provides for two exceptions:
NMTsK exceeds 50 million rubles. - establish security in the amount of 10 to 30 percent of the NMCC, but not less than the advance;
Advance payment over 30 percent of IMCC – set security at the amount of advance payment.
If the participant has reduced the NMTsK by 25 percent or more, the customer applies anti-dumping measures, which are provided for in Article 37 of Law No. 44-FZ.
Such requirements are spelled out in part 6 of article 96 of Law No. 44-FZ.
Situation: during the purchase, the winner reduced the price of the contract. Whether to change the amount of security that the customer prescribed in the notice and documents
No, don't change. Set the amount of security on the basis of the NMTsK, and not the final cost of the contract. This is spelled out in part 6 of article 96 of Law No. 44-FZ.
Situation: will the customer be fined for not requiring contract security. The customer was supposed to establish a requirement for contract security, but did not
Yes, they will be fined. Have not established a requirement for securing a contract, be prepared to pay a fine of 3,000 rubles. Installed, but not correctly - from 5,000 to 30,000 rubles. The conclusion follows from parts 4 and 4.2 of article 7.30 of the Code of Administrative Offenses of the Russian Federation. The position was confirmed by the decisions of the FAS dated January 9, 2017 No. KGZ-004/17, dated October 4, 2016 No. KGZ-430/16.
How does the winner secure the contract?The winner of the purchase chooses how to secure the contract: provide a bank guarantee or deposit money into the customer's account at the Federal Treasury.
Attention: do not tell the procurement participant how to secure the contract. The winner himself will choose: to provide a bank guarantee or to make a cash deposit (part 3 of article 96 of Law No. 44-FZ).
Otherwise, the responsible employee will pay a fine of 5,000 to 30,000 rubles. Responsibility is provided for by part 4 of article 7.30 of the Code of Administrative Offenses of the Russian Federation.
The winner of the purchase has the right to change the form in which the contract provides. When replacing a bank guarantee with a cash deposit or vice versa, the counterparty has the right to reduce the amount of the guarantee by the amount of obligations that it has fulfilled. Such a right is provided for by Part 7 of Article 96 of Law No. 44-FZ.
The counterparty changes the size and form of security only after it has started to execute the contract. The parties draw up a partial acceptance of goods, works or services. Such clarifications are given by the Ministry of Economic Development of Russia in letters dated February 6, 2015 No. D28i-273 and dated February 23, 2015 No. D28i-361.
Conclude the contract when the winner deposits the security. A participant who does not provide a guarantee or a deposit on time is recognized as evading and entered in the register of unscrupulous suppliers - RNP. The period by which the winner must deposit the security is specified in the procurement documentation. This is stated in parts 4 and 5 of article 96, part 2 of article 104 of Law No. 44-FZ.
If you conclude a contract without security, you violate part 4 of article 96 of Law No. 44-FZ. The responsible employee will pay a fine from 5,000 to 30,000 rubles, the organization - from 50,000 to 300,000 rubles. Punishment is provided for by Part 1 of Article 7.32 of the Code of Administrative Offenses of the Russian Federation.
Example: on the inclusion of information in the RNP
The PFR branch in the Ulyanovsk region held an auction for the supply of office supplies. The company "TenderKants" won. Within the period specified by the customer in the contract, the winner did not provide a bank guarantee or collateral. The customer recognized the participant as having evaded the conclusion of the contract. The basis is part 5 of article 96 of Law No. 44-FZ.
TenderKants explained that the accountant did not send the money due to inattention. However, OFAS admitted that the customer made a lawful decision, since the participant violated the terms of the contract without good reason - through negligence. The Antimonopoly Service entered TenderKants into the register of unscrupulous suppliers for two years.
Situation: to whose account the winner will transfer the contract security if the customers held a joint auction
The winner of the joint bidding will transfer the security to the account of each customer in the volumes stipulated by the draft contracts. Conclude a contract with the winner only after you receive a guarantee or funds to the account. Even if they made a joint purchase.
Two or more customers have the right to conduct joint bidding. Each customer concludes a contract with the winner. This is spelled out in part 1 of article 25 of Law No. 44-FZ and paragraph 8 of the Rules, which were approved by the Government of the Russian Federation by Decree No. 1088 of November 28, 2013.
The customer concludes the contract after the winner provides the security. The winner also provides a bank guarantee to each participant (part 4 of article 96 of Law No. 44-FZ, letter of the Ministry of Finance of Russia dated March 30, 2016 No. 02-02-04 / 18024).
Situation: whether the winner has the right to assign the obligation to provide contract security to a third party
Yes, the winner has the right to impose the obligation to pay security on a third party. At the same time, enter into a contract only if the payer has written in the payment order that the security was provided for the participant, and indicated the name of the winner, the registration number of the purchase or the contract number, other information that indicates that the security relates to a specific purchase and the winner. The conclusion follows from paragraph 1 of Article 313 of the Civil Code. The position was confirmed by the decision of the OFAS for the Republic of Komi dated March 27, 2014 No. 04-02 / 2548, the decision of the Arbitration Court of the Moscow District dated May 13, 2016 No. A40-126679 / 2015.
How to make a cash depositThe winner of the purchase provides the contract with money that is deposited into the customer's account in the Federal Treasury. It is impossible to transfer money to accounts in commercial banks (part 3 of article 96 of Law No. 44-FZ, letter of the Ministry of Economic Development of Russia dated September 11, 2015 No. D28i-2613).
The counterparty transfers money in full or in parts. But sign the contract when the winner transfers the entire amount. Even if the winner submits a payment, do not sign the contract until the money is received in the personal account in the Treasury. Such an explanation is given by specialists of the Ministry of Economic Development of Russia in a letter dated September 30, 2014 No. D28i-1889.
Situation: Is the customer entitled to demand that the contract be secured in the form of winner's liability insurance?
No, not right. Demand to secure the contract either with a bank guarantee or with money to an account in the Federal Treasury. These two methods are provided for by Part 3 of Article 96 of Law No. 33-FZ. It is unlawful to demand insurance, so the customer's official will pay a fine of 5,000 to 30,000 rubles. (part 4 of article 7.30 of the Code of Administrative Offenses of the Russian Federation).
Instead of insurance, write in the contract that the winner will pay the penalty at the expense of security if he violates the terms of the deal.
Situation: where can a municipal unitary enterprise open an account for the participant to transfer the contract security, in the Treasury or a commercial bank
In a commercial bank, if you make a purchase at the expense of earned funds. If you received subsidies from the budget, open an account with the Federal Treasury. Reason: a unitary enterprise is a commercial organization with an independent balance sheet, which has the right to open bank accounts in Russia and abroad (part 1 of article 2, part 3 of article 3 of Law No. 7-FZ, letter of the Ministry of Finance of Russia dated March 30 2016 No. 02-01-10/18023).
The customer has the right to use an account opened for similar purposes when making purchases under Law No. 223-FZ.
Situation: is it obligatory for the Federal State Unitary Enterprise to open an account with the Federal Treasury, to which the participants will transfer the contract security
No, not necessarily. Unitary enterprises, as a customer under Law No. 44-FZ, have the right to open an account with a commercial bank. Reason: unitary enterprises do not receive budgetary funds, and unitary enterprises are also entitled to open bank accounts in Russia and abroad in the manner established by the Central Bank of the Russian Federation. The conclusion follows from Article 78.2 of the Budget Code. The position was confirmed by the Ministry of Finance of Russia in a letter dated March 30, 2016 No. 02-01-10/18023.
Situation: whether to require the winner of the auction to confirm the transfer of the contract security by a payment order with a bank note or a certified copy
No. The customer is not entitled to require the winner to confirm the transfer of money with the original payment order or a copy certified by the bank. If you set a requirement, then pay a fine - 3000 rubles. This follows from part 3 of article 70 of Law No. 44-FZ and part 4.2 of article 7.30 of the Code of Administrative Offenses.
How to accept a bank guaranteeThe participant sends the guarantee to the customer along with a signed copy of the contract. If you are running an electronic auction, the winner will place the guarantee in the EIS along with a signed copy of the contract. This is stated in part 3 of article 54, part 3 of article 70 of Law No. 44-FZ.
Consider the bank guarantee within three working days after receipt. Accept the warranty or reject it. Guarantees are provided by banks that the Ministry of Finance has included in a special list. The Ministry publishes the list on the official website. Do not accept guarantees from banks that are not included in the list. Such rules are established by part 1 of article 45 of Law No. 44-FZ and part 3 of article 74.1 of the Tax Code of the Russian Federation.
There are two ways to issue a guarantee:
in writing, with all sheets of the bank guarantee numbered, stitched, signed, affixed with the seal of the bank;
an electronic document with an enhanced unqualified electronic signature of an employee acting on behalf of the bank.
The procedure is specified in the Additional Requirements for the Guarantee, which were established by the Government of the Russian Federation by Decree No. 1005 of November 8, 2013.
The guarantee states:
the amount that the bank will pay to the customer;
obligations of the participant guaranteed by the bank;
the bank's obligation to pay the customer a penalty of 0.1 percent of the guarantee for each day of delay;
the condition under which the bank's obligations are fulfilled when the money is credited to the customer's account;
duration of the guarantee;
the condition that the bank will conclude a guarantee agreement after you sign the contract with the winner of the purchase;
the right of the customer to demand in writing to pay under the guarantee if the supplier performed poorly or did not perform the contract;
the condition that the commission for money transfer is paid by the bank;
the ability to transfer the right to claim money under the guarantee if the customer changes;
documents that the customer will submit to the bank in order to receive money under the guarantee.
The requirements for a bank guarantee are specified in part 2 of Article 45 of Law 44-FZ, and the list of documents was approved by the Government of the Russian Federation by Decree No. 1005 of November 8, 2013, hereinafter - Decree No. 1005.
The bank is not entitled to prescribe three conditions in the guarantee:
The guarantor bank will not pay the customer unless the customer submits a notice that the supplier has breached the contract or that the contract has been terminated. Exception - if the notification is provided for by the contract or legislation;
the customer will report to the bank how the contract has been executed;
the customer will submit to the bank documents that are not in the list approved by Decree No. 1005.
Prohibitions are established by Decree No. 1005.
The bank guarantee cannot be revoked. The validity of the guarantee must exceed the term of the contract by at least a month. This is provided for by part 2 of article 45 and part 3 of article 96 of Law No. 44-FZ.
When to void a warranty
Reject a warranty that:
not included in the register of bank guarantees;
does not contain the terms of parts 2 and 3 of Article 45 of Law No. 44-FZ;
does not comply with the requirements of the notice or procurement documents.
The grounds for refusal are prescribed in part 6 of article 45 of Law No. 44-FZ.
If you do not accept the guarantee, inform the counterparty within three working days. In the notice, state the reason why the warranty was refused. Then submit information to the register of bank guarantees, for this place in the EIS:
the reason and code of the reason why the guarantee was refused;
the number and date of the supplier's notice of refusal, an electronic or scanned document that was sent to the supplier.
Such a procedure is provided for in part 7 of article 45 of Law No. 44-FZ and paragraphs 10 and 23 of the Procedure, which was approved by the Ministry of Finance of Russia by order of December 18, 2013 No. 126n.
To place information in the EIS, use the "User's Guide. Procurement management subsystem in terms of the register of contracts and the register of bank guarantees.
What is the register of bank guarantees
Bank guarantees are included in a special register in the EIS. The register of bank guarantees is maintained by the Federal Treasury. This is spelled out in part 8 of article 45 of Law No. 44-FZ and paragraph 3 of the Rules from Decree No. 1005.
The register of bank guarantees includes:
name, address, TIN of the guarantor bank;
name, location, TIN of the supplier;
name, address, TIN of the customer;
purchase identification code;
copies of documents on changing the guarantee or refusing to accept the guarantee, if any;
the amount of the guarantee;
warranty period;
a copy of the guarantee, unless the guarantee is included in a closed register.
This is spelled out in part 9 of article 45 of Law No. 44-FZ and paragraph 4 of the Rules approved by Decree No. 1005.
If the contracts contain state secrets, the Treasury includes a bank guarantee in a closed register. This is indicated by part 8.1 of Article 45 of Law No. 44-FZ.
The bank issues a guarantee and includes the information in the register in one day. An employee who acts on behalf of the bank signs information and documents with an enhanced electronic signature (clauses 5 and 8 of Regulation No. 1005).
Situation: how to check the expiration date of a bank guarantee if the customer has not set the expiration date of the contract
Consider that the expiration date of the contract is the last date when the customer must pay the contractor remuneration (part 3 of article 96 of Law No. 44-FZ, paragraph 3 of article 425 of the Civil Code of the Russian Federation).
If you have not set a validity period in the contract, then be prepared to prove your position in the control body (decision of the Krasnoyarsk OFAS dated August 20, 2015 No. 992).
When and how to return the contract securityReturn the security in two cases: the tender did not take place, and the counterparty fulfilled the terms of the contract.
The competition did not take place
If the tender did not take place, return the security within five working days. At the same time, the reason that the purchase did not take place was that the parties did not sign the contract within 30 days due to a court decision or other insurmountable circumstances. This rule is enshrined in part 9 of Article 96 of Law No. 44-FZ.
The counterparty performed the contract without violations
Return the security within the time specified in the contract. This is required by Part 27 of Article 34 of Law No. 44-FZ.
Specialists of the Ministry of Economic Development indicate that the customer returns the money when the winner fulfills the main obligation under the contract. Return the money, even if the object of purchase is still under warranty. This rule does not work if the parties stipulate in the contract that the customer returns the money when the warranty period expires (letter of the Ministry of Economic Development of Russia dated December 31, 2014 No. D28i-2865).
The contractor violated the terms of the contract
Return the security partially or not at all, but write down such an opportunity in the contract.
The counterparty who violated the terms of the contract pays the customer a penalty. The customer either requires payment of fines, penalties, or withholds the penalty from the deposit. This is provided for by part 6 of article 34 of Law No. 44-FZ.
If the contract is secured by a bank guarantee, demand the amount of the penalty from the guarantor bank. Such an explanation is given by the Ministry of Economic Development of Russia in a letter dated February 15, 2016 No. D28i-416.
Write in the contract that you will withhold money from the security if the counterparty violates the contract. The condition will help to avoid disagreements. After all, judicial practice on the recovery of a penalty from security is ambiguous. So, on November 9, 2015, the Arbitration Court of the Khabarovsk Territory indicated that the customer can withhold the fine only if he writes such a condition in the contract. On May 21, 2015, the Thirteenth Arbitration Court of Appeal ruled that the customer has the right to withhold a penalty from the security, even if he did not prescribe a condition in the contract.
Situation: is it necessary to fix a payment order for the return of the contract security in the EIS
No, you do not need to attach a payment order for the return of the contract security in the EIS. The customer places in the UIS information on payment for the contract, on the calculation of penalties and a document on the acceptance of goods, works, services. This is stated in part 2 of article 103 of Law No. 44-FZ.
Situation: should the customer return the contract security if the winner evaded the conclusion of the contract
Yes, it should. If the winner is found to have evaded the conclusion of the contract, then the customer must withhold only the security of the application. The security for the performance of the contract must be returned. The conclusion follows from paragraph 6 of part 6 of article 44 of Law No. 44-FZ, paragraphs 1 and 2 of article 352, paragraph 1 of article 1102 of the Civil Code of the Russian Federation.
In what cases is it not necessary to require contract security?Do not demand to secure a contract when:
conclude a contract with state and municipal government institutions;
procure credit services;
A budgetary institution, a unitary enterprise enters into a contract for a bank guarantee.
This is stated in part 8 of article 96 of Law No. 44-FZ.
The customer has the right, but not the obligation, to demand security for the contract in three situations.
1. The customer conducts a request for quotations and the NMTsK is less than 500,000 rubles.
2. The customer conducts a request for proposals and the subject of the contract:
o sports equipment and equipment for Olympians;
o drugs by decision of the medical commission;
o handicrafts;
o services to protect the interests of the Russian Federation in international courts.
3. The customer concludes a contract with a single supplier for the purchase of:
o up to 100,000 rubles;
o up to 400,000 rubles. – for educational and cultural institutions;
o utilities;
o goods, works and services in case of accidents and emergencies;
o cultural values for state funds;
o services for the management or maintenance of MKD;
o travel, housing, meals for employees who were sent on a business trip;
o non-residential premises in state or municipal ownership;
o treatment of Russians abroad;
o enumerator services;
o otherwise.
A complete list of cases when it is not necessary to require a contract to be secured is specified in Part 2 of Article 96 of Law No. 44-FZ.
Situation: a federal state budgetary institution is participating in a competition to create a website for the Ministry of Economic Development. Does the customer have the right to demand from the Federal State Budgetary Institution to ensure the execution of the contract
Yes, right. The customer does not require to secure a contract when he concludes a contract with a state or municipal government institution. This is spelled out in part 8 of article 96 of Law No. 33-FZ. The participant is also not subject to part 2 of article 96 of Law No. 44-FZ. Therefore, upon winning the tender, the Federal State Budgetary Institution is obliged to provide a bank guarantee or deposit money into the customer's account, as provided for by part 4 of Article 96 of Law No. 44-FZ.
Situation: request for quotations from NMTsK 230,000 rubles. did not take place, as only one application met the requirements. Whether it is necessary to require enforcement of the contract if the customer enters into a contract with a single supplier
Required if the requirement is specified in the notice.
The customer has the right, but is not obliged to establish a requirement to secure a contract when he conducts a request for quotations with the NMCC up to 500,000 rubles. This rule is spelled out in part 2 of article 96 of Law No. 44-FZ. If such a requirement is established in the notice and documents, the supplier is obliged to provide security.
The requirement applies to the sole supplier, and to the winner, and to the participant, depending on how the auction goes. Do not selectively set a requirement only for the only supplier with whom you conclude a contract under clause 25 of part 1 of Article 93 of Law No. 44-FZ.
Situation: is the customer obliged to require a contract with a supplier up to 100 thousand rubles, if an advance payment of 30 percent is provided
The customer has the right to demand the security of the contract, which he will conclude with the supplier in the amount of up to 100 thousand rubles, even if an advance payment has been established in the contract. The conclusion follows from Part 2 of Article 96 of Law No. 44-FZ. A similar position is expressed in the letter of the Ministry of Economic Development of Russia dated March 20, 2015 No. D28i-793.
Situation: does the purchase of financial lease (leasing) services fall under the exception when the customer does not establish contract security
No, it doesn't. When purchasing finance lease or leasing services, establish a requirement to secure a contract.
The customer is required to establish a requirement that the winner secure the contract. At the same time, Law No. 44-FZ provides for exceptions. One of the exceptions is the purchase of loan services (part 1, paragraph 2, part 8, article 96 of Law No. 44-FZ).
The essence of the financial lease agreement is that the lessor provides the lessee with property for a fee for temporary possession and use. In turn, under a loan agreement, the lender provides the borrower with money, and the borrower undertakes to return the money received and pay interest on it. Therefore, the exception that the provisions on contract security do not apply to the procurement of services to provide a loan does not apply to the procurement of finance lease services (Articles 665, 819 of the Civil Code of the Russian Federation).
Situation: whether to require the supplier to secure the contract if the request for quotations did not take place and the notification does not provide for security
No, don't ask for security. When a single bid is submitted for a request for quotation, or only one meets the requirements of the notice, acknowledge that the purchase did not take place. Sign a contract with a supplier under clause 25 of part 1 of article 93 of Law No. 44-FZ. This item is not included in the list of exceptions when the customer has the right not to establish contract security. However, the notice does not stipulate that the customer must secure the contract, so do not require a cash deposit or bank guarantee from the supplier. The conclusion follows from part 14 of article 78, article 79, part 2 of article 96 of Law No. 44-FZ. The position is confirmed by the Ministry of Economic Development in a letter dated October 27, 2016 No. D28i-2951
1.1. When establishing requirements for banks, the Government of the Russian Federation establishes requirements for the amount of own funds (capital) of a bank and the level of credit rating assigned to a Russian credit institution by one or more credit rating agencies, information about which is entered by the Central Bank of the Russian Federation into the register of credit rating agencies, according to the 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 amendments to Article 76.1 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" and the invalidation 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 regulation of the contract system in the field of procurement on the basis of 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 regulation of the contract system in the field of procurement in the information and telecommunications network "Internet". If circumstances are discovered that indicate that a bank not included in the list complies with 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 detection of these circumstances to make appropriate changes to the list.
ConsultantPlus: note.
Part 1.3 Art. 45 (as amended by the Federal Law of December 27, 2019 N 469-FZ) applies
1.3. During the period of implementation of the plan for the participation of the Bank of Russia in the implementation of measures to prevent the bankruptcy of a bank included in the list of banks provided part 1.2 of this article, as of the date of approval of the said plan, the applications and execution of contracts may be secured by bank guarantees of such a bank, regardless of the compliance (non-compliance) of such a bank with the requirements established in accordance with part 1.1 of this article, subject to the decision of the Board of Directors of the Central Bank of the Russian Federation on guaranteeing the continuity of the activities of such a bank.
ConsultantPlus: note.
Part 1.4 Art. 45 (as amended by Federal Law No. 469-FZ of December 27, 2019) also applies to banks for which, before December 28, 2019, plans for the participation of the Bank of Russia in the implementation of measures to prevent their bankruptcy are approved and the continuity of their activities is guaranteed during the implementation period of the plans.
1.4. During the period of implementation of the plan for the participation of the Bank of Russia in the implementation of measures to prevent the bankruptcy of a bank included in the list of banks provided for by Part 1.2 of this Article, as of the date of approval by the Board of Directors of the Central Bank of the Russian Federation of the said plan, such a bank shall not be excluded from the said list, subject to the adoption by the Board directors of the Central Bank of the Russian Federation decisions on guaranteeing the continuity of the activities of such a bank.
ConsultantPlus: note.
Part 1.5 Art. 45 (as amended by Federal Law No. 469-FZ of December 27, 2019) also applies to banks for which, before December 28, 2019, plans for the participation of the Bank of Russia in the implementation of measures to prevent their bankruptcy are approved and the continuity of their activities is guaranteed during the implementation period of the plans.
1.5. Information on the fact and date of approval of the plan for the participation of the Bank of Russia in the implementation of measures to prevent the bankruptcy of a bank included in the list of banks provided for in Part 1.2 of this Article, and information on the fact and date of the adoption by the Board of Directors of the Central Bank of the Russian Federation of a decision to guarantee the continuity of the activities of such a bank in during the implementation period of the specified plan are sent by the Central Bank of the Russian Federation to the federal executive body for regulating the contract system in the field of procurement no later than within five working days following the day the said decision is made.
ConsultantPlus: note.
Part 1.6 Art. 45 (as amended by Federal Law No. 469-FZ of December 27, 2019) also applies to banks for which, before December 28, 2019, plans for the participation of the Bank of Russia in the implementation of measures to prevent their bankruptcy are approved and the continuity of their activities is guaranteed during the implementation period of the plans.
1.6. If a bank included in the list of banks provided for by Part 1.2 of this article, as of the date of approval of the Bank of Russia’s participation plan for such a bank in the implementation of bankruptcy prevention measures, is excluded from the said list before the day the Board of Directors of the Central Bank of the Russian Federation makes a decision on guaranteeing the continuity of the activities of such a bank during the period of implementation of the plan for the participation of the Bank of Russia in the implementation of measures to prevent the bankruptcy of the bank, such a bank is included in the specified list by the federal executive body for regulating the contract system in the field of procurement no later than within five working days following the day receipt from the Central Bank of the Russian Federation of the information specified in Part 1.5 of this Article.
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 case of improper performance of obligations by the principal in accordance with Article 96 of this Federal Law;
2) obligations of the principal, the proper fulfillment of which is secured 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 of money payable for each day of delay;
(see text in previous edition)
4) the condition according to which the fulfillment of the obligations of the guarantor under the bank guarantee is the actual receipt of funds to the account on which, in accordance with the legislation of the Russian Federation, operations with funds received by the customer are recorded;
(see text in previous edition)
6) a suspensive condition providing for the conclusion of an agreement for the provision of a bank guarantee for the principal's obligations arising from the contract upon its conclusion, in the event that a bank guarantee is provided as security for the performance 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 a 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 shall include a condition on the right of the customer to an indisputable debit of funds from the account of the guarantor, if the guarantor fails to more than five working days, the customer's demand for payment of the amount of money under the bank guarantee, sent before the expiration of the bank guarantee, has not been fulfilled.
ConsultantPlus: note.
Part 3.1 Art. 45 (as amended by the Federal Law of December 27, 2018 N 502-FZ) applies to purchases, notices of which are posted, invitations are sent after 07/01/2019, and by agreement of the parties - to relations under contracts, purchase notices for which are posted, invitations are sent until 07/01/2019.
3.1. In accordance with Parts 7 and 7.1 of Article 96 of this Federal Law, the amount of the contract performance security provided in the form of a bank guarantee shall be reduced by the customer by waiving part of his rights under this guarantee. At the same time, the date of such refusal is the date of inclusion of the information provided for by Part 7.2 of Article 96 of this Federal Law in the relevant register of contracts provided for by 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 considers the received bank guarantee within a period not exceeding three working days from the date of its receipt.
(see text in previous edition)
6. The basis for refusal to accept a bank guarantee by the customer is:
1) the absence of information about the bank guarantee in the registers of bank guarantees provided for by this article;
(see text in previous edition)
3) non-compliance of the bank guarantee with the requirements contained in the notice of procurement, invitation to participate in the selection of 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 in writing or in the form of an electronic document about this the person who provided the bank guarantee, indicating the reasons that served as the basis for the refusal.
(see text in previous edition)
8. A bank guarantee used for the purposes of this Federal Law, information about it and the documents provided for by Part 9 of this Article must be included in the register of bank guarantees posted 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 entitled to act on behalf of the bank. Within one business day after the inclusion of such information and documents in the register of bank guarantees, the bank sends the principal an extract from the register of bank guarantees.
(see text in previous edition)
8.1. The information on bank guarantees provided for by 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, it is included in the closed register of bank guarantees, which is not posted in the unified information system and on the official website .
(see text in previous edition)
8.2. Additional requirements for a bank guarantee used for the purposes of this Federal Law,