In connection with the change in the procurement procedure to meet state and municipal needs, there has been an increased interest in the procedure for obtaining bank guarantees, both to ensure the fulfillment of the contract and to return the advance payment. Banks are tightening the requirements for the Principal (hereinafter referred to as the Participant) when considering the issue of providing guarantees.

Types of guarantees and their features

The following main types of guarantees can be distinguished:

1. Application Security Guarantee - provided by the participant in order to be able to take part in the tender. Instead of a guarantee, the participant has the right to provide a security deposit (transfer funds to the accounts of the customer or the organizer of the auction, as a rule, the deposit / guarantee is about 1% to 5% of the contract amount). A participant can receive a loan for these purposes, in the bank it is called "tender lending", such types of loans are usually provided by banks without collateral and in a shorter time. When applying to a bank for "tender" loans, it is advisable to indicate a period of at least 3 months, in connection with the timing of the tender specified in Law No. 44-FZ. If the competition is held within the framework of Law No. 44-FZ, it must be remembered that, in accordance with Article 45, the Bank guarantee for securing the application must contain 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

2. Guarantee for the fulfillment of obligations under the contract - provided by the participant after winning the competition, but before signing the contract. This condition mandatory and the participant may be included in the list of "not bona fide" suppliers, if he refuses to provide such a guarantee. In addition, the amount of the security deposit “burns out” or comes into force bank guarantee, specified above in paragraph 1. As a rule, the guarantee amount is not more than 30% of the contract amount, the guarantee period must exceed the contract validity period by 2 months.

3. Advance payment refund guarantee - provided by the participant if the participant receives an advance payment under the contract. Each customer, regardless of whether it is a commercial or government tender, whether tender support is used or not, independently determines the amount and conditions of this type of guarantee. In practice, there are 2 options for such guarantees:

• the guarantee applies to specific types of work (services, delivery of goods), for example, the customer provided an advance payment in the amount of 10 million rubles. for the performance of works on the improvement of the territory and as soon as the act is signed, the guarantee cannot be presented for execution
• the guarantee applies to the entire contract, regardless of what work the participant will do and what not, this guarantee is more risky for the bank.

In addition to the above guarantees, there is a loan security guarantee, a guarantee for the proper performance of obligations, a customs guarantee, a guarantee for warranty service, a guarantee for the payment of fines and other types.

If the tender is held within the framework of Law No. 44-FZ or No. 223-FZ (state procurement), the participant can provide guarantees only for those banks that are indicated in the register of bank guarantees (Article 49, clause 9, No. 44-FZ) . If the tender is commercial, the Customer shall indicate in the tender documentation the list of banks whose guarantees he accepts.

If there is no bank in the list of banks for commercial tenders that is ready to provide you with a guarantee, send an official letter to the Customer with a request to agree on this bank. It is advisable to clarify in advance whether the bank has previously issued guarantees to similar structures like your Customer and make a reference to this in the letter as confirmation of the positive business reputation of the bank. If the bank is included in the register under 44-FZ, also make a link to this in the letter.

Attention!

The revocation of the license from the bank does not indicate the invalidity of the bank guarantee.
Resolution of the Ninth Arbitration Court of Appeal dated December 24, 2014 N 09AP-49289/2014 in case N A40-54279/14-73-44B

Bank's claims to the Principal

In addition to the minimum requirements for procurement participants on the part of the state Customer, there are standard minimum requirements for the participant (Principal) on the part of the Bank, we will consider them in more detail with our recommendations:

Bank requirement
No losses for the last 2 reporting periods	Before contacting the bank, submit an adjustment to the reporting to the Federal Tax Service, show at least a minimum profit. Attach receipts to the bank about sending the corrected statements, or the bank, having checked the statements with the Federal Tax Service, will accept this as a falsification.
Current account turnover for the last 6 months	If there is no turnover, offer the bank a guarantor. At the same time, it is necessary to position yourself as a group of companies and explain the lack of turnover, for example, there is a transfer of activities from the company of the guarantor OR there has been a distinction by type of activity to the companies of the group, etc.
Experience in participating in competitions and performing these types of work.	It is necessary to prepare copies of contracts, acts and payments with links to tenders for previously completed contracts. If there is no experience, read above - offer a guarantor. If there is no experience and an affiliated company, provide the bank with contracts and acts on the work performed of this kind, as a subcontracting company.
Availability of material and technical base for the implementation of the contract (equipment, workers, material, etc.)	If there is no material and technical base, provide the bank with a contract for attracting subcontracting companies (it is necessary that these companies be without signs of "one-day")
The period of activity of the company should not be less than a year	If the term is less than a year, the guarantee will not be received in any bank. In such a situation, a guarantor will be needed (see above)

In addition to the above requirements for a participant, the bank imposes standard requirements, as when lending to a company - the absence of delays, criminal records, arbitrations, signs of “not real” activity, etc.

Note

When carrying out public procurement, the law establishes the following requirements for participants:

• non-liquidation procurement participant - legal entity and the absence of a decision of the arbitration court on the recognition of a procurement participant - a legal entity or individual entrepreneur insolvent (bankrupt) and on the opening of bankruptcy proceedings;
• non-suspension of activities procurement participant in the manner prescribed by the Code Russian Federation about administrative offenses, on the date of filing the application for participation in the procurement;
• the procurement participant has no arrears on taxes, dues, debts on other mandatory payments to budgets budget system Russian Federation for the past calendar year, the amount of which exceeds twenty-five percent of the balance sheet value of the assets of the procurement participant, according to financial statements for the last reporting period.
• absence of the procurement participant - an individual or the head, members of the collegial executive body or the chief accountant of the legal entity - procurement participant criminal convictions in the field of economics (with the exception of persons whose convictions have been canceled or expunged), as well as non-application in relation to the specified individuals punishment in the form of deprivation of the right to occupy certain positions or engage in certain activities that are related to the supply of goods, performance of work, provision of services that are the object of the ongoing procurement, and administrative punishment as disqualification.

Bank requirements for the beneficiary and the contract

In the case of providing a guarantee to a state customer, the bank does not have any special requirements for the customer, which cannot be said about a commercial tender. Let's look at practical examples possible problems and questions that may arise when applying to a bank for guarantees for a commercial Customer, such as Gazprom, Izhorskiye Zavody, Oboronenergo, Tander and many others:

Purchase of equipment

The company applied for a non-collateral guarantee of the return of the advance payment under the contract for the supply of equipment for the Izhora plant. Despite the good financial position company and having a positive experience of working with the Customer, the Bank requested the following information:

• from whom the participant will purchase equipment and whether he has previously worked with this supplier
• How will the payment and delivery of equipment to the participant take place?
• where is the guarantee that after prepayment, the supplier will supply this equipment

All questions are logical and understandable. But, the problem arose in the process of providing answers to the questions posed by the bank - the participant did not buy equipment from a foreign manufacturer directly or its distributor, but from a trading Russian company. Of course, everyone understands that this was due to tax optimization (“gray” customs clearance and cost optimization). As a confirmation of the seller's positive business reputation and minimization of the bank's risks, the participant suggested the following:

• a transaction passport was opened in the bank that provided the bank guarantee in order to control the direction of the advance payment to the equipment manufacturer
• the bank was asked to check the seller through the security service

These activities helped to obtain a guarantee.

Construction

The company applied for a partially unsecured guarantee of the return of the advance payment under the contract for the construction of a store for Tander (Magnit stores). Despite the good financial position of the company, the availability of collateral covering about 30% of the guarantee and the positive experience of working with the Customer, the Bank requested the following information:

• stage of the contract (what has been done, how much work remains to be done, how much payment has been received for the work performed)
• financial plan and schedule for the remaining work
• why the deadlines for completing the work on the first stage (preparation construction site)
• where is the guarantee that the participant will be able to fully fulfill his obligations under the contract at the expense of the advance payment (availability of material and technical base, qualified employees, permits, experience in conducting these types of work)

The participant provided a financial plan, estimates and a work schedule, including indicating the timing of the receipt of funds from the Customer, a photo report of what has already been completed at the facility. The Bank was provided with a letter describing the construction process - what works are performed by the participant, what works are subcontracted, what equipment is own, what is rented. The terms and procedure for payment under the subcontract agreement must comply with the agreement with the Customer (to be later).

When considering this project, the following problem arose - to prove to the bank that the work will not only be completed, but also accepted by the customer. In the process of carefully studying the contract, a letter was drawn up with the following content:

“In accordance with clause 5 of the Agreement, the Customer accepts work from the Contractor on a quarterly basis, fixing this with an act of acceptance and transfer of work. In accordance with clause 7 of the Agreement, payment for the work under the signed act is made as follows - 50% is debited from the advance payment, 50% is transferred by the Customer to the Contractor's account. Thus, the conditions of the bank guarantee provide for a systematic decrease in the requirements for the guarantee as a result of the quarterly delivery of work to the Customer.” It was also proposed that the bank consolidate control over intended use advance payment by the client - contracts for the purchase of materials and payment for subcontract work were provided to the bank in advance.

In the above examples, it is clearly seen that the bank pays attention to the experience of working with the customer, the "transparency" of the transaction, the guarantee of the performance of work, the possible risks associated with non-performance of the contract, the production and technical cycle of the contract, the business reputation of the participants in the transaction. A big plus for the participant will be if he has already begun to fulfill the contract on his own, not from scratch. Of course, when considering an unsecured guarantee, the requirements of the bank will be much tougher than when there is security. But this does not mean that the bank will issue a guarantee with “closed” eyes, as it was before 2014.

What to offer the bank as collateral - if there is nothing

If you do not have any collateral, offer the bank to issue a deposit from an advance payment in the amount of 30% of the advance payment amount, which will be received in the future after the provision of a guarantee for the return of the advance payment. Many banks are actively using this tool this year. At the first negotiations with the bank, immediately clarify this possibility.

How to expedite the warranty process

1. You must choose desired bank- send a commercial offer on the intention to take a bank guarantee to the banks' websites. You must call the client manager within 24 hours. Ask him to conduct an express analysis of your project before the meeting and before filling out the questionnaire for the guarantee. To do this, send him an email the following documents, which it is quite enough for the bank to fundamentally express its readiness to work with the project and the conditions for providing a guarantee:

• reporting for the last 5 quarters
• 51 invoices per month for the last 6 months
• link to the competition or the contract itself with all applications
• letter from brief description activities of your company (name, TIN, location, website, types of activities, completed contracts, current portfolio of orders, current loans) and the essence of the application (type of guarantee, amount, term, customer, subject of the contract, collateral or lack of collateral, experience with the customer )
• a letter with a full description of how you will fulfill the contract

2. First of all, fill out an application and a questionnaire in 2-3 banks selected in accordance with clause 1
3. After the questionnaires are sent to the bank for the security service, prepare one package of any bank from clause 2
4. Immediately order 2 copies of certificates from the Federal Tax Service on the absence of tax arrears and the availability open accounts(certificate to prepare 2 weeks!!!), certificates from banks where you have open settlement accounts about the absence of file cabinet No. 2, overdue debts on loans indicating monthly turnover for the last 6 months (this is a standard request that will also take at least 5 working days), a daily statement of 51 accounts for the last 6 months from all current accounts certified by the operator bank (just in case, order it, as the risk managers of some banks request it at the last moment, and this requires time to prepare them)
5. After security is passed, you can prepare a complete set of documents in accordance with the list of the bank (they are almost the same in all banks)
6. In the course of the first negotiations with the bank, as well as when applying for a guarantee, be sure to indicate 2 guarantees at once - for securing the application and for the execution of the contract (if the tender is conducted within the framework of Law No. 44-FZ), subject to the provisions of Art. 37 (read below)

Attention!

If the bank charged you a commission and did not provide a guarantee, you have the right to recover unjust enrichment in the form of a commission for providing a guarantee upon termination of the contract.
Resolution of the Arbitration Court of the Moscow District dated November 24, 2014 N F05-12756 / 2014 in case N A40-9306 / 2014

Law No. 44-FZ

The public procurement procedure is regulated by Federal Law No. 44 of 04/05/2013. (last revised on 03/08/2015). When providing a guarantee, the bank also checks that the participant fulfills the requirements of the tender documentation and justifies the price of the winning participant:

In accordance with Article 31, the Government of the Russian Federation has the right to establish for procurement participants Additional requirements , including the presence of: financial resources for the performance of the contract; on the right of ownership or other legal basis of equipment and other material resources for the performance of the contract; work experience related to the subject of the contract, and business reputation; the required number of specialists and other employees of a certain skill level for the performance of the contract.

In accordance with Article 37, if, during a tender or auction, the initial (maximum) the contract price is more than 15 million rubles. and the procurement participant with whom the contract is concluded, the contract price is proposed, which is more than 25% lower than the initial (maximum) contract price, the contract is concluded only after such participant provides security (guarantee) for the execution of the contract in the amount, exceeding one and a half times the size of the security for the performance of the contract specified in the tender or auction documentation, but not less than the advance payment (if the contract provides for advance payment). If, during a tender or auction, the initial (maximum) the price of the contract is 15 million rubles. and less and the procurement participant with whom the contract is concluded, the contract price is proposed, which is 25% or more lower than the initial (maximum) contract price, the contract is concluded only after such participant provides the contract performance security in the amount specified above or information confirming the good faith of such a participant on the date of application. To the information confirming the good faith of the participant procurement, includes information contained in the register of contracts concluded by customers, and confirming the performance by such a participant within one year before the date of filing an application for participation in a tender or auction of three or more contracts (in this case, all contracts must be executed without applying penalties to such a participant (fines, penalties), or within two years prior to the date of filing an application for participation in a tender or auction of four or more contracts (at the same time, at least seventy-five percent of the contracts must be executed without applying penalties (fines, penalties) to such a participant), or within three years before the date of filing an application for participation in a tender or auction of three or more contracts (in this case, all contracts must be executed without the application of penalties (fines, penalties) to such a participant. In these cases, the price of one of the contracts must be at least than twenty percent of the price at which the procurement participant proposed to conclude a contract. nickname of the procurement with whom the contract is concluded, before its conclusion. The procurement participant who has not fulfilled this requirement, recognized as having evaded the conclusion of the contract. If the subject of the contract for the conclusion of which a tender or auction is held, is the supply of goods necessary for normal life support (food, funds for the provision of an ambulance, including specialized ambulance, medical care in an emergency or emergency form, medicines, fuel), a procurement participant who offered a contract price that is twenty-five percent or more lower than the initial (maximum) contract price, is obliged to provide the customer with a rationale for the proposed contract price , which may include a letter of guarantee from the manufacturer indicating the price and quantity of the goods supplied, documents confirming the availability of goods from the procurement participant, other documents and calculations confirming the ability of the procurement participant to supply the goods at the proposed price.

The above provisions of the law must be taken into account when issuing a bank guarantee, since when the guarantee comes into force, the participant is obliged to pay the amount of guarantees to the Bank (as well as a loan)!

New in law

Decree of the Government of the Russian Federation of March 6, 2015 N 199 defines cases in which in 2015 the customer has the right not to establish the requirement to secure the execution of a contract for the supply of goods, performance of work, provision of services to meet state or municipal needs in a notice of procurement and (or) project contract. Such cases are:

• holding tenders, electronic auctions, requests for proposals, in which only small businesses that are socially oriented are participants in procurement non-profit organizations;
• the draft contract contains a condition on banking support contract;
• the draft contract contains a condition on the transfer of advance payments to the supplier (contractor, performer) to the account opened territorial body Federal Treasury or financial authority subject of the Russian Federation, municipality in institutions of the Bank of Russia;
• the draft contract provides for the payment of advance payments in the amount of not more than 15 percent of the contract price when making a purchase to meet federal needs or in another amount established by higher executive bodies state authorities of the constituent entities of the Russian Federation, local administrations, when making purchases to meet the needs of the constituent entity of the Russian Federation, municipal needs, respectively, as well as the customer’s settlement with the supplier (contractor, performer) with payment in the amount of not more than 70 percent of the price of each delivery of goods (stage of work, provision of services) to meet federal needs or in another amount established by the highest executive bodies of state power of the constituent entities of the Russian Federation, local administrations, when making purchases to meet the needs of the constituent entity of the Russian Federation, municipal needs, respectively, and making a full payment only after the customer has accepted all the delivered goods stipulated by the contract, performed works, rendered services and full performance by the supplier (contractor, executor) of other obligations stipulated by the contract (except for warranty obligations);
• procurement participant is budget institution or autonomous institution and he was offered a contract price reduced by no more than 25 percent of the initial (maximum) contract price.

How to exclude a company from the list of "not bona fide" suppliers

Consider the main controversial reasons for including the company in the register of "not bona fide" suppliers. if your company is in such a register, it will be practically impossible to obtain a bank guarantee even for a commercial tender.

The participant provided an invalid ("fake") bank guarantee

Unfortunately, if you become a victim of loan brokers who provide "fake" guarantees, you are quite in danger of being included in the list of "unscrupulous" suppliers. This situation can only be avoided by participating in the tender under Federal Law No. 44, because article 45, clause 11 obliges the Bank that issued the bank guarantee, no later than one business day following the date of its issue, to send this information for inclusion in the closed register of bank guarantees.

Judicial practice is ambivalent. So, for example, the Resolution of the Arbitration Court of the North-Western District of 02/03/2015 in case N A42-8393 / 2013 reads “The company cannot be included in the register of unscrupulous suppliers in connection with the provision of an invalid guarantee, since the bad faith of the company’s behavior has not been proven, having received a controversial bank guarantee, the company was not able to establish falsification this document taking into account the statutory deadline for signing the contract and providing security”. This decision was also supported by the Arbitration Court of the Ural District dated December 29, 2014 N F09-8701 / 14 in case N A71-13777 / 2013

Directly opposite decision was made by the Arbitration Court North Caucasus District dated 11/27/2014 in case N A32-26486 / 2013 “The bank guarantee presented by the company (participant in an open auction), the fact of issuance of which the bank denies, is a violation of Part 11 of Art. 41.12 of the Federal Law "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs", as a result of which the company is included in the register of unscrupulous suppliers." This position supported the Ninth Arbitration Court of Appeal dated 09.12.2014 N 09AP-47382/2014 in case N A40-61396/14 “The application to cancel the decision to include the applicant in the register of unscrupulous suppliers was rightfully denied, since the company did not take the necessary and reasonable measures to conclude a state contract, it did not show the due degree of care and discretion when issuing a bank guarantee through intermediaries, the fact of providing a false the bank guarantee was confirmed, the decision was made by Rosoboronzakaz in strict accordance with the Federal Law "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs."

Correction of an error in the text of a bank guarantee

Resolution of the Ninth Arbitration Court of Appeal dated February 13, 2015 N 09AP-53233/2014 in case N A40-117875/14 the application to invalidate the decision of the Rosoboronzakaz to include information about the applicant in the register of unscrupulous suppliers was satisfied, since the applicant did not evade signing the state contract, a technical error occurred when issuing bank guarantees, which the applicant corrected the next day after he was informed of this and took all measures to conclude a public contract, there are no signs of bad faith in the behavior of the applicant.

In another case, the company is included in the Register of Unscrupulous Suppliers “In view of the direction by the company with the draft contract of an irrevocable bank guarantee, the validity period of which is set in violation of the requirements of the auction documentation. The demand was denied, since the actions of the company are reasonably qualified by the management as evading the conclusion of a contract, inclusion in the Register meets the goals of maintaining such a register and is proportionate to the violation committed.(Resolution of the Arbitration Court of the North Caucasus District dated February 11, 2015 in case N A53-15447 / 2013, Resolution of the Arbitration Court of the North Caucasian District dated December 3, 2014 in case N A53-2205 / 2014)

It is necessary to check everything that the bank wrote in the guarantee. For example, “The application to invalidate the decision of the antimonopoly authority to include information about the applicant in the register of unscrupulous suppliers was rightfully denied, since the subject of the auction indicated in the form of the bank guarantee submitted by the applicant did not correspond to the subject of the contract being concluded.(Decision of the Ninth Arbitration Court of Appeal dated November 27, 2014 N 09AP-46983/2014 in case N A40-93651/2014)

In view of the above judicial practice, the participant must independently check the compliance of the guarantee issued by the bank with the conditions of the tender documentation!

Attention!

The Beneficiary does not have the right to demand the return of the advance from the Principal, if the funds were transferred by the Guarantor to the Beneficiary under a bank guarantee for the return of the advance payment.
Resolution of the Arbitration Court of the Moscow District dated February 9, 2015 N F05-17035 / 2014 in case N A40-39377 / 14

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

What does the refusal of the customer to accept the guarantee mean for the contractor. The answer is obvious - nothing good. Before the expiration of the period established by law for concluding a contract, the contractor must provide another bank guarantee (with a high probability that there may not be enough time for this) or ensure the execution of the contract in cash. Funds can be borrowed, but receive for short term Bank loan under acceptable conditions is hardly possible. And this means that, most likely, you will have to secure a contract own funds. And if they cannot be found, then the contractor is expected to refuse to conclude a contract, be included in the Register of Unscrupulous Suppliers and lose Money submitted 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 damage to the company's business reputation, which can be fatal for further business.

How should a potential executor of the 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 a bank guarantee. And if the refusal is not properly justified, then you should definitely take measures to protect your interests from the unlawful actions of the customer.

So, can the 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 federal law No. 44-FZ dated April 5, 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:

To summarize the above - if the bank guarantee provided by the contractor to ensure the performance of the contract meets the requirements of both Art. 45 of Federal Law No. 44-FZ, as well as the requirements of the procurement documentation, the customer does not have the right not to accept it. Demand from the customer a written or electronic document with the rationale for the refusal and appeal it in court.

Here are some examples of consideration in various judicial instances of cases related to the refusal of the customer to accept bank guarantees.

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

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

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

2. The court found it illegal to include a procurement participant in the register of unscrupulous suppliers (RNP), as the company undertook necessary actions to replace a bank guarantee that does not comply with the law with a new guarantee.

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

The court pointed out 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 bad faith behavior of the participant - the commission of intentional actions (inaction) that would be contrary to the public procurement law. At the same time, the procurement participant did not intend to evade the conclusion of the contract and immediately, as soon as it became known about the rejection of the bank guarantee, sent the customer clarifications from the bank and a new bank guarantee.

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

3. The court recognized as 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 remove the 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 bidding company had to show due diligence when issuing a bank guarantee through an intermediary and independently check its presence in the register on the official website of public procurement.
Source - Resolution of the Arbitration Court of the East Siberian District dated July 7, 2015 in case No. A19-15172/2014.

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 not available to bidders. Only the procurement customer can check the availability of a bank guarantee in the register. In this regard, the procurement participant can obtain confirmation of the issuance of a bank guarantee by contacting the bank directly. We recommend using for these purposes only the phone numbers listed on the official website of the bank. 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 of the Credit Insurance Agency recommend that you carefully approach the issue of obtaining bank guarantees. Avoid unreliable intermediaries, whatever profitable terms they didn't promise you. Don't be afraid to take the time to study the tender documents and check the layout of the bank guarantee. Be sure to coordinate the layout of the guarantee 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.

Want to always be always up to date -

How to record the security of obligations in the form of a bank guarantee in the absence of original documents?

Answer

In the absence of original bank guarantees, reflect them on the account on the basis of an extract from the register of bank guarantees.

Responsibility for the fact that you corrected errors and reflected transactions in accounting later than the date of their registration is not provided by the current legislation.

Maxim Chemerisov, Director of the Department for the Development of the Contract System of the Ministry of Economic Development of Russia

How to establish the requirement to secure an application under Law No. 44-FZ

When you receive a guarantee, check it for all mandatory and additional requirements. After all, it cannot be supplemented or changed. Exception: if the bank has incorrectly filled in the information or details. Then they draw up an agreement on changing the bank guarantee. It indicates the number of the guarantee, the date of the changes and their details. Such changes are an integral part of the bank guarantee.

Information about them is reflected in the register of bank guarantees. Such clarifications, as well as the procedure for changing guarantees, are given in the letters of the Ministry of Economic Development of Russia dated June 22, 2015 No. D28i-1815, dated May 15, 2015 No. D28i-1382.

The participant's bank guarantee must be in the register of bank guarantees. It is maintained and placed in the EIS by the Treasury of Russia in accordance with the Rules approved by the Decree of the Government of the Russian Federation of November 8, 2013 No. 1005.

To confirm that the bank guarantee is in the register, the participant submits to the customer an extract from this register with a signature and seal. The extract is generated automatically based on the data of the registry entry.

This is stated in part 8 of article 45 of the Law of April 5, 2013 No. 44-FZ, paragraph 25 of the Procedure approved by order of the Ministry of Finance of Russia of December 18, 2013 No. 126n.

By the way, you can include a sample bank guarantee in the purchase documentation. True, you have no right to demand that the guarantee correspond to this sample. This is not required by law and you cannot refuse to accept a warranty because of this.

It is still impossible to refuse to accept a bank guarantee if the winner of the purchase does not give you its original. After all, information about it can be obtained from the register of bank guarantees.

Such clarifications are in paragraph 6 of the annex to the letter of the Treasury of Russia of May 19, 2015 No. 07-04-05 / 09-319, the letter of the Ministry of Economic Development of Russia of January 26, 2015 No. D28i-128.

Once you have received a bank guarantee, you have three working days to accept or reject it. If the customer is a government agency that has delegated its procurement powers to another organization, then it is she who makes such a decision (part 6 of article 15 of the Law of April 5, 2013 No. 44-FZ, clause 6.3 of the joint letter of December 17, 2014 Ministry of Finance of Russia No. 02-02-05 / 65137 and Ministry of Construction of Russia No. 26484-YUR / 08).

Natalia Guseva, director of the Center for Education and internal control Institute of Additional Professional Education "International Finance center”, State Counselor of the Russian Federation, 2nd class, Ph.D. n.

How to correct errors in accounting and reporting

Misrepresentation of facts is recognized as an error economic activity in accounting and reporting. They also evaluate the situation when operations are not reflected at all in accounting. Simply put, a mistake is if you made incorrect entries, did not reflect the operation, or filled out the reporting incorrectly.

Reason for correction

Make corrections with the primary accounting document - Accounting certificate (f. 0504833). The basis is the documents that reporting period not carried out or carried out with errors (for example, an act on the provision of services, an additional agreement, etc.). In the accounting statement reflect:

the reason why you are making corrections;

the name of the corrected accounting register (transaction journal), its number, the period for which the register was compiled.

This conclusion follows from part 1 of article 9 of the Law of December 6, 2011 No. 402-FZ, paragraphs 7, 18 of the Instruction to the Unified Chart of Accounts No. 157n.

When you make corrective entries in the accounting registers, the chief accountant (head of the structural unit) puts a note about this in the Accounting certificate in the section “Marking the acceptance of the Accounting certificate for accounting”. This order is established in Guidelines, approved by order of the Ministry of Finance of Russia dated March 30, 2015 No. 52n.

Correction order

Corrections to the electronic register are made by the employee responsible for its formation (clause 18 of the Instructions for the Unified Chart of Accounts No. 157n).

The rules for how to correct an error depend on when it was discovered: before the reporting date or after.

When concluding a state or municipal contract, the contractor is obliged to provide security for its execution in one of two ways:

bank guarantee

Transfer of funds.

The most common mistakes when performing this action are providing a guarantee that does not comply with the conditions of the tender documentation. The consequences of even minor violations can be:

Refusal to conclude a state or municipal contract;

Recognition of the contractor as having evaded the conclusion of the contract and its inclusion in the register of unscrupulous suppliers.

As a rule, both of these effects occur simultaneously.

In order to avoid the negative risks associated with the provision of collateral, it is recommended to carefully take into account the existing experience in this matter.

Depending on what caused the error and how the contractor acted when providing security, the result of resolving the dispute may be different.

Erroneous transfer of the amount of security (presentation of a guarantee for a smaller amount) than provided by the procurement documentation.

The amount of the security is established by Article 94 of the Federal Law No. 44 and is indicated in the notice of purchase, the purchase documentation and the draft contract. The collateral requirement is mandatory. The amount can be from 5 to 30% of the initial (maximum) price of the contract, but not less than the advance payment.

Since the norms of this article are mandatory, the amount of security cannot be reduced by agreement of the parties, and even minor errors in the calculation of the amount may lead to the consequences described above.

Case Study : the contract was not concluded and the winner of the purchase was included in the register of unscrupulous suppliers due to the fact that they were provided with security for 10 kopecks. less than stipulated by the procurement documentation (Case No. А40-137037/2012).

How to resolve the error. If such an error does occur, it should be corrected as soon as possible and reported to the customer. In the event that additional security is submitted before the deadline for concluding a contract (no more than 20 days from the date of posting the protocol for consideration of applications), the problem is solved. When the deadline already expires (2-3 days left), the security amount may not be credited to the customer's account, so the contractor's actions should not be limited only to additional payment.

The Contractor is obliged to perform all measures depending on him to conclude a contract and confirm his good faith. Such measures may include:

Provision to the customer cover letter with an explanation of the reasons for the error, indicating its correction and attaching a genuine payment order with a bank note on execution (or a new bank guarantee).

2. Errors in issuing a bank guarantee

Examples of such errors might be :

The term of the bank guarantee is less than the term of the contract (А60-39092/2013);

The bank guarantee only provides coverage for losses, but does not provide for the fulfillment of all obligations under the contract (А40-56381/2014, А64-1671/2014);

In the bank guarantee, an error was made in indicating the name of the customer (А40-49538/2013)

The subject of the contract is incorrectly indicated in the bank guarantee (А40-101964/2012)

The bank guarantee states that it comes into force only after the signing of the contract (A45-24157/2013).

Ways to fix the error: you must immediately contact the bank (as well as several other banks) for the issuance of a correct bank guarantee, inform the customer about this, indicating the terms for providing appropriate security. In the event that the contractor takes all measures depending on him to provide adequate security, there is a chance to defend his position in court.

3. The bank did not confirm the provision of the bank guarantee.

The right to check the collateral belongs to the customer by virtue of law, and such a check will most likely be carried out after the conclusion of the contract. As a rule, the customer sends a written request to the bank. If the bank does not respond to the request or does not confirm the issuance of a bank guarantee, the customer has the right to recognize the contractor as evading the conclusion of the contract and apply to the antimonopoly authority for inclusion in the register of unscrupulous suppliers.

4. The security was sent on the last day of the term and did not reach the customer

As a rule, the courts in these cases take the side of the customer and recognize the actions of the contractor who sent the security on the last day of the term as unfair. Consequences - refusal to conclude a contract and inclusion in the register of unscrupulous suppliers. It is practically impossible to prove the opposite in this case, therefore, the performers are advised to send the necessary documents to the customer in advance.

5. The guarantee was not provided on time due to the long consideration of the contractor's application by the Bank.

If the executor acted in good faith and informed the customer about his appeal to the bank, about the terms for issuing and submitting a bank guarantee, and also applied to other banks for issuing a guarantee, the executor's actions can be recognized as appropriate (А56-36273 / 2012).

However, it should be borne in mind that the contractor is not deprived of the initial opportunity to apply to other banks and must act reasonably by sending such applications in advance, and not on the last days of the deadline (A40-1502 / 2013).

General conclusion: in any situation, the actions of the performer must be exhaustive, that is, complete and sufficient to eliminate the mistake made. The winner of the purchase must take all measures depending on him to conclude a contract and provide security. Otherwise, the contract will not be signed and the organization risks getting into the registry. To eliminate risks, you should maintain constant communication with the customer, record your requests, inform about your actions to receive and provide security in writing and by e-mail. It is also necessary to start the process of providing security in advance and begin to eliminate possible errors immediately after their discovery. The possibility of further judicial protection will depend on the correctness of the actions of the contractor, therefore it is recommended that the attention of internal and external specialists be paid to this issue.

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Very often, companies ask themselves the question: who is responsible for the compliance of the guarantee with the provisions of the Law on the contract system - the bank or the procurement participant? The judges gave their answer after a lengthy trial.

The customer did not accept the bank guarantee

The company won electronic auction and applied to the bank for a guarantee. Credit organisation issued it and debited the amount of the commission from the client's account.

However, the customer refused to accept the security and considered that the winning bidder was avoiding the deal. The institution explained that the guarantee does not contain a suspensive condition, which is mentioned in clause 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 right of the customer to indisputably write off 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, having issued an acceptance certificate. But she failed to get back the paid commission. I had to go to court.

The court of first instance upheld the bank

In dismissing the claim, the judges cited Civil Code RF. They explained that when forming a guarantee, the bank proceeds from the needs of the procurement participant and the norms of the law.

In this case, the parties signed an additional agreement, which set out the terms of the bank guarantee. The return of the commission was not provided for either by the provisions of the law or by the agreed terms.

The company won the appeal

However, the winner of the auction did not give up and filed an appeal. This time the decision was made in his favor.