Bank guarantee 223 fz product passport. Official request to the guarantor bank

The most reliable method to ensure the fulfillment of a state contract is the use of bank guarantees. Being a kind of obligation, and not a system of mutual settlements between a client and a financial institution, guarantees act as a tool. His work is based on the fact that in case of failure to fulfill the obligations stipulated by the contract, the bank is the guarantor responsible for the financial part of the contract.

Differences between bank guarantees under 222-FZ and 44-FZ?

Federal Law No. 223 is the most loyal to participants involved in public procurement. It is installed general order to carry out procurement activities. At the same time, Federal Law No. 44 toughens the procedure for conducting public procurement, establishing certain requirements for all parties to the contract, both the customer and the supplier of services and products. Banks are also no exception, the Federal Law No. 44 stipulates the rules for them.

Consider the 3 most important differences between these two bills when obtaining bank guarantees:

The first difference

According to Federal Law No. 44, all must be entered into a single register, abbreviated as ERBG. This is the main requirement for implementation, since bank guarantees not included in unified system information will not be accepted by the customer as guarantees to ensure the fulfillment of the contract. On the introduction of bank guarantees in ERBG, obligations are imposed on the Federal Treasury Russian Federation... The rules of work based on 223-FZ do not impose on public procurement participants the mandatory entry into the register of bank guarantees.

The second difference

According to Federal Law No. 44, not every bank can issue a guarantee. To obtain it, you must contact financial institution, included in a certain list of banks that comply with legal regulations, and are authorized to regulate the scope financial relations, according to these public procurement contracts.

Specific requirements have been put forward for such banks:

the bank's capital must be at least 1 billion rubles;
there must be a license to carry out such activities;
experience in a similar field of activity must be at least 5 years.

All banks that have permission to issue bank guarantees are awarded an identification code, this procedure is carried out in accordance with order No. 127 of the Ministry of Finance of the Russian Federation of 12/18/2013.

Third difference

Referring to Article 223-FZ, a bank issuing bank guarantees does not have to be entered into the general register of banks of the Ministry of Finance of Russia. But, in spite of this, the same customers put forward quite stringent requirements for banks. The bank that issued the guarantee must be at least in the top 50 best banks, or even in the top 10 on the list of the Ministry of Finance.

If the value of the contract exceeds 50,000,000 rubles, according to the article, the customer simply needs to demand from the bank that it is secured by about 10-30% of the maximum value provided. If Article 223-FZ applies, no justification of the contract price is required, there is no need in principle to establish it.

Bank guarantees under 223-FZ and their varieties

Based on Federal Law No. 223, there are three types of bank guarantees:

Bank guarantee issued to a supplier who has expressed a desire to take part in a tender or auction. She provides the participant's application.
Bank guarantee for the return of the advance.
Bank guarantee, ensures the fulfillment of the public procurement contract.

223-FZ requirements for bank guarantees

What are the requirements, according to Federal Law No. 223, are put forward for bank guarantees? No matter how loyal the law is, for obtaining bank guarantees, there are still a number of established rules. According to them, bank guarantees:

are irrevocable;
have a certain period reality (this item is required);
within three days after receiving the guarantee, the customer is obliged to either confirm or reject it;
all information about the amount of payment, if the supplier fails to fulfill its obligations, must be specific;
it should stipulate the obligations of each of the parties involved in the implementation of actions for which a bank guarantee is provided.

Justification for obtaining guarantees

Many customers put up requirements for suppliers to have bank guarantees in accordance with 223-FZ, as one of the main conditions for participating in tenders for public procurement. In the event that such requirements are not set, it is still advisable and justified to obtain bank guarantees.

This is due to the following factors:

providing guarantees is much cheaper than applying for a loan on a commercial basis, and it will not hurt if you need to take a loan (it is much more difficult to issue 2 loans than getting a bank guarantee and getting a loan at the same time);
the bank may provide a deferred payment, while increasing the cost bank guarantee will not happen;
having bank guarantees, you can use such a service as advance payments;
availability of guarantees reduces the risks of concluded transactions to a minimum level.

Cost and size of guarantees

The size of bank guarantees for participants in public procurement is determined exclusively on an individual basis, their calculation is based on the final amount of the contract. Naturally, when determining the size of a bank guarantee, banks make an independent decision, but in accordance with the law, the upper limit is considered within 10% of overall indicator bank capital. The main factors affecting the cost of guarantees may be the terms for which it was provided, the availability, as well as the absence of the necessary collateral. To reduce its cost, you can open a bank account where a bank guarantee is issued, or provide property owned by the company as a pledge. Bills and deposits can serve as collateral.

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State Duma Deputy R.G. Shaikhutdinov it was proposed to amend the Federal Law of July 18, 2011 No. 223-FZ "On the procurement of goods, works, services separate types legal entities"and in the Federal Law of 05.04.2013 No. 44-FZ" On the contract system in the field of procurement of goods, works, services for the provision of state and municipal needs"in terms of requirements for ensuring the fulfillment of obligations by the procurement participants.

In particular from explanatory note to the draft law, it follows that currently, within the framework of the current provisions of the Federal Law of July 18, 2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities", they have the right to independently regulate the issue securing applications, fulfilling obligations under the contract, including customers have the right to present any requirements to (size, form, order of submission, validity period, etc.) and the banks issuing them. In practice, this leads to the fact that customers require that bank guarantees were issued by banks acceptable to the customer.

Pursuant to and in accordance with Parts 1 and 1.1 of Article 45 of Federal Law No. 44-FZ, the Government of the Russian Federation issued Resolution No. 440 of 12.04.2018 "On Requirements for Banks That Have the Right to Issue Bank Guarantees to Secure Applications and Execution of Contracts" effective from June 1, 2018. This Resolution established the following.

Banks that issue bank guarantees to customers to secure applications and execute contracts must simultaneously meet the following requirements (clause 1 of Resolution No. 440):

the bank has own funds(capital) in the amount of at least 300 million rubles, calculated according to the methodology of the Central Bank of the Russian Federation, as of the last reporting date;

the bank has credit rating not lower than the level "BB- (LW)" according to the national rating scale for the Russian Federation of the credit rating agency Analytical Credit Rating Agency ( Joint-stock company) and (or) a credit rating not lower than the "gVB-" level according to the national rating scale for the Russian Federation of the credit rating agency Joint Stock Company " Rating agency Expert RA.

At the same time, with regard to the level of the credit rating, a transition period has been established until 01.01.2020 (clause 2 of Resolution No. 440), during which banks with a rating not lower than the level "B- (RU)" and "gV-", respectively, can carry out issuance of bank guarantees.

Today, the requirements set out in paragraph 2 of clause 1 of the Resolution,

potentially matches 49 to 102 banks. However, 576 credit institutions currently operate in the established bank guarantee market to secure applications and execute contracts.

At the same time, in contrast to Federal Law No. 44-FZ, Federal Law No. 223-FZ in current edition there are no requirements either for the banks issuing bank guarantees or for the guarantees themselves.

At the same time, based on the provisions of Article 1 of Federal Law No. 223-FZ, it establishes general principles purchases of goods, works, services and the basic requirements for such purchases carried out by legal entities with state participation(state corporations, state-owned companies, public companies, subjects of natural monopolies, organizations carrying out regulated activities, budgetary institutions, state and municipal unitary enterprises). This law does not apply to legal entities in whose authorized capital the participation of the Russian Federation, a constituent entity of the Russian Federation, municipality in aggregate does not exceed fifty percent, for their subsidiaries business companies and subsidiaries of the latter (part 2.1. Article 1).

Thus, purchases carried out by the subjects of Federal Law No. 223-FZ are fully or largely financed from the funds of the respective budgets. budget system Russian Federation.

It seems that the absence of provisions on securing an application in Federal Law No. 223-FZ:

does not contribute to the implementation of a number of objectives of this law,

formulated in part 1 of article 1: efficient use Money, prevention of corruption and other abuses;

does not comply with the procurement principle formulated in

clause 3 of part 1 of article 3: targeted and cost-effective spending of funds and the implementation of measures aimed at reducing the costs of the customer.

At the same time, the extension of requirements to banks issuing bank guarantees as collateral for applications and execution of contracts under Federal Law No. 44-FZ to banks issuing guarantees under Federal Law No. 223-FZ may complicate the situation for banks, since restrictions are imposed customers, which means that regulation of such requirements and restrictions is required,

In this regard, the bill proposes to empower the Government of the Russian Federation to introduce the institution of securing an application by amending Federal Law No. 223-FZ.

Also, taking into account that the regulatory legal acts The government of the Russian Federation, as a rule, sets the minimum permissible values of indicators, and in order to prevent customers from setting unreasonably high requirements, the draft law proposes that both Federal Law No. 223-FZ and Federal Law No. 44-FZ include a ban for customers to assign to banks issuing bank guarantees as security for applications and execution of contracts, requirements exceeding the minimum acceptable criteria established by the Government of the Russian Federation.

Excessive requirements for banks create difficulties in obtaining bank guarantees for small and medium-sized businesses for the purpose of securing applications and executing contracts.

Additionally, it should be noted that the bill will reduce the risks of submitting fake bank guarantees.

Unification of requirements for bank guarantees will increase their availability for small and medium-sized businesses and will allow to remove barriers to participation in procurement, as well as support the process of stabilization and development. banking sector, will help protect competition in the banking market.

To systematically prepare customers for the implementation of the proposed innovations, the draft law provides for a transitional period for its entry into force until January 1, 2019.

One of the most universal ways to ensure the fulfillment of obligations is a guarantee from a bank. When participating in state tenders, this document is mandatory, and regulates the issues of providing a bank guarantee 223-FZ in Moscow. This law reflects all the basic requirements for this instrument.

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Features of bank guarantees in accordance with Federal Law-223

A guarantee is a document according to which the bank undertakes to compensate the creditor for a certain amount of funds, provided that the client does not fulfill the obligations stipulated in the contract. It is one of the most versatile financial instruments that ensure reliable performance of obligations.

Bank guarantee under 223-FZ is divided into the following types:

To secure the application

This document acts as a confirmation of the seriousness of the supplier's intentions to participate in the tender, as well as a guarantee that the person will not change essential conditions your proposal.

Refund advance payment

The financial institution reimburses the customer for funds in case of their misuse or refusal to fulfill the obligations stipulated in the contract.

Enforcement of the contract

Such a guarantee is activated in the event that the conditions set forth in the agreement are not fulfilled in full or improperly fulfilled.

Requirements for a bank guarantee under 223-FZ

Federal Law No. 223 provides for certain requirements for this financial instrument... Mandatory conditions:

Irrevocability of the document;
A well-defined period of validity;
Customer-specified terms for accepting and rejecting a guarantee;
Clear indication of the amounts to be paid;
An indication of the mutual obligations of the parties.

In addition, it is provided that the guarantee implies the implementation of payment at the first request of the creditor. The client of the bank, as a rule, has access to the purchase of the service both for covering 100% of the amount, and for providing part of it.

At the time of presentation of claims for the payment of the guarantee, the creditor provides the bank with a document confirming the fact of meeting the requirements. The financial institution is obliged to fulfill the conditions stipulated in the contract, but is not obliged to perform the services of the customer's place.

Bank guarantees under 223-FZ are governed by the rules that apply at the location of the bank that issued the service and the current legislation of the Russian Federation.

Distinctive features of a bank guarantee under 223-FZ and 44-FZ

The procedure for obtaining a bank guarantee is regulated not only by 223-FZ, but also by 44-FZ. These legislative acts differ in their rigidity towards persons participating in public tenders.

FZ-44 stipulates the basis for holding tenders and establishes a certain range of requirements that determine the fact of its validity.

The main differences between bank guarantees 223-FZ and 44-FZ are in the following provisions:

In Federal Law No. 44, the inclusion of guarantees in the register, which is placed in a single information system... The responsibility for maintaining the relevant register is vested in the Federal Treasury. Federal Law No. 223 does not require that guarantees be entered into a unified register.
Federal Law No. 44 sets out the requirements for financial institutions issuing guarantees. One of the main roles is given to financial solvency credit institution... The bank's own funds cannot be less than 1 billion rubles. In addition, a financial institution license must be valid for at least 5 years.
Serious selection criteria according to law no. 44 are set by the customers. Mostly, customers require financial institutions to be included in the list of banks established by the Ministry of Finance or to occupy leading positions in it.
According to Federal Law No. 44, the customer in mandatory establishes collateral. The bank guarantee under 223-FZ does not contain this condition.

Basic requirements for a bank guarantee under 223-FZ

Federal Law No. 223 establishes separate requirements for a person to receive a guarantee from a financial institution. First of all, a bank guarantee in accordance with 223-FZ cannot be revoked by a participant.

Such a document is valid in strictly defined time frames. The customer has 3 days to accept or reject it. It is imperative that the amount and the basic rights of the persons who entered into the contract are clearly prescribed.

The cost of bank guarantees under FZ-223

The cost of a bank guarantee under 223-FZ in Moscow is determined by the total amount of the contract, determined on an individual basis for each individual case. The law stipulates that the maximum value of the remuneration for the guarantee is 10% of total amount contract.

In most cases, the cost of a bank guarantee in accordance with Federal Law-223 is determined based on the commission of a financial institution and other additional factors, for example, the duration of its validity, the size of the contract, the quality of the documents provided, the presence or absence of collateral. To register a service in a bank, you need to open an account or provide a collateral.

What credit institutions can issue guarantees?

According to Federal Law-233, bank guarantees can be issued only by those credit institutions that have received special license v Central Bank RF. This is one of the main requirements of the new law.

Information about financial institutions that meet the above requirements is posted on the Central Bank website. Additionally, each credit institution that meets the requirements is entered in the unified register of organizations providing such services. The information in the register is constantly updated and updated by the Central Bank.

A bank guarantee under 223-FZ in Moscow is defined as one of the most effective ways securing obligations. This law sets out the basic requirements for a guarantee for those persons who wish to participate in public tenders. According to this law, each document must contain the terms of its validity, as well as the amount of security. Law No. 223 significantly relaxes the requirements for the form of the document, which were established by FZ-44 for its guarantees. It is no longer necessary to indicate the exact amount of collateral to participate in trading under FZ-223. In addition, the law significantly relaxes the requirements for the guarantor.

A convenient tool to ensure the fulfillment of obligations is a bank guarantee. This term means a document obliging the bank (guarantor) to pay the creditor (beneficiary) a certain amount in accordance with the agreement if the principal has not fulfilled his obligations to the creditor in due time. Simply put, if the supplier does not fulfill its obligations to the customer, the bank compensates the financial side of the contract, after which the supplier remains in debt to the bank, and not to the customer. The diagram shows a similar interaction:

The most common requirement for similar insurance is an a prerequisite for everyone applying for participation in public procurement. Even in its absence, the actions associated with obtaining bank security are quite justified in case of unforeseen risks, being less expensive than obtaining commercial loan... There are a number of requirements for bank guarantees, as well as for the financial institutions to which they are provided. The basic requirements are contained in the articles Federal Law No. 44 "On the contract system" and in the Federal Law No. 223 "On procurement of state-owned companies."

Bank guarantee under 44-FZ

To issue a bank guarantee, hereinafter BG, you need to select a bank from the list posted on in order to submit an application. The next step will be to provide the financial institution with the necessary documentation, the list of which may vary depending on the requirements of the bank itself, however, there are a number of mandatory documents that will be required in any case at the stage of consideration of the application. Mandatory documents that will need to be provided to the financial institution:

Application for providing monetary guarantee (in the form of an institution).
Applicant information.
Copies of constituent documents.
Copies of documents capable of confirming the authority of the person submitting the application.
Accounting reporting with transcripts.
Draft contract for which security is required.

Important! Before submitting an application, you must carefully read the conditions under which a particular bank provides BG. For example, for many financial institutions, among other conditions, it is mandatory that the applicant has a current account at the place of application.

An example of what this document looks like:

Compliance with 44-FZ

It should be noted that single sample the form is not enshrined in law, but the content of the document is regulated by articles of the current draft laws 44-FZ, the Civil Code of the Russian Federation. The bank guarantee must be properly verified. The document must meet the following criteria:

mandatory placement in a single list of bank guarantees and on the official public procurement portal;
is irrevocable;
BG contains full information about the amount in accordance with parts 2, 3, article 45 of the Federal Law No. 44;
there should be no requirements for the provision of judicial acts confirming improper performance the principal of the undertaken obligations;
BG must be at least one month longer than the main contract.

Important! On the basis of clause 11, article 45, Federal Law No. 44, the bank is obliged to place information in the register of a unified information system before the expiration of one business day from the date of issue of the guarantee.

Procurement portal interface where you can view guarantees in unified register:

Bank requirements

Before you apply for required document, you should check the bank itself, which is ready to act as a guarantor. An institution that is ready to provide BG must comply with the following requirements:

must be included in the list of banks of the Ministry of Finance of the Russian Federation;
a financial institution operates on the basis of a license issued by the Central Bank for a period of at least 5 years;
the size equity capital over 1 billion rubles;
the requirements of the Federal Law No. 86 of 10.07.2002 for all reporting dates of the last half of the year were observed;
The Central Bank did not put forward requirements regarding the stabilization of the financial situation in a particular bank.

Single register

All BG, except for contracts issued as security containing information related to the category state secrets must be included in the general register of the unified information system. The latter are included in a separate closed list, which is not used for placement in a unified information system. Control over the maintenance of the register, as well as over actions to place the contents of the register in a unified information system, is carried out by the Federal Treasury. The registries themselves, both open and closed, must include the following information:

name, TIN, legal address of the guarantor bank;
name, TIN, legal address of the principal (supplier, contractor);
the amount of money declared in BG, which the guarantor must pay in accordance with Articles 44-FZ in the event that the procurement participant does not fulfill its obligations;
validity period of the document;
a copy of the document itself, except for BG, entered in a closed register.

BG size

BG amount should be 5-30% original cost lot of purchase. If the cost of the lot is more than 50 million rubles, the cost of the material support of the contract in such cases may be equal to 10-30% of the total starting price the entire contract as a whole, but not less than the cost of the advance. In cases where the value of the advance is higher than 30% of the value of the entire contract, the amount of BG will be equal to the amount of the advance.

Indisputable write-off

Articles 44-FZ give the customer the right to irrevocably write off the money owed under the guarantee upon the occurrence of certain conditions. An indisputable write-off should be understood as the possibility of withdrawing funds from the balance of the guarantor institution by the beneficiary in his own favor without a preliminary application or notification. An undisputed write-off is possible if there are several good reasons:

according to judgment;
if there is a relevant clause of the agreement;
in cases permissible according to the current legislation.

Guarantee coverage under 223-FZ

Articles of the Federal Law No. 223 of 18.06.0211 "On the procurement of goods, works, services by certain types of legal entities" is distinguished by its loyalty in comparison with 44-FZ. There are several fundamental distinctive differences that characterize BG under 223-FZ:

In accordance with Articles 223-FZ, BG that is not included in the unified register is subject to adoption.
According to 223-FZ, it is not necessary to find the Guarantor institution itself in the official list of the Ministry of Finance of the Russian Federation.
If under 44-FZ there is an obligation to provide 10-30% of the initial price, provided that the cost of the contract is over 50 million rubles, then under 223-FZ there is no such need.

Insurance options for a contract under 223-FZ

There are three types of BGs within the framework of 223-FZ:

Ensuring participation in the tender.
Securing advance payment.
Enforcement of the terms of the contract itself.

Requirements for 223-FZ

Despite the relative mildness, the forms of BG according to 223-FZ obey a number of unconditional prescriptions:

obligatory irrevocability;
the obligation to have a validity period;
the amount to be paid by the guarantor to the customer must be determined if the principal fails to comply with the terms of the contract;
must contain the obligations of the procurement participant in full;
the period during which the customer has the right to approve or reject the BG after the receipt of the application must be indicated.

What is the difference between forms bank guarantee according to 44-FZ and 223-FZ, is described in the video:

Download the full list of banks that comply with the requirements of the legislation, namely clause 3, article 74.1 Tax Code Russian Federation, please follow the link:

You can view information about the bank guarantee in the unified register on the website

One of the most reliable and convenient ways to insure the performance of a contract under 223-FZ is to obtain a bank guarantee. Bank guarantee is a document confirming the consent of the bank or credit institution to pay the customer a certain amount in the event that the supplier refused to conclude a contract or was unable to fulfill its conditions properly.

Bidders under 44-FZ also receive a bank guarantee, but for them this procedure is mandatory and regulated by law. In purchases under 223-FZ, the requirements for the guarantee are set by the customers. Despite the fact that obtaining a guarantee from a bank is not a prerequisite for participating in such auctions, it remains a very common practice.

Application of a bank guarantee under 223-FZ

In accordance with 223-FZ, the application of a bank guarantee can take place in several directions, namely:

For the execution of a government contract. This document guarantees the payment of a certain amount to the customer by the bank in the event that the supplier performs the obligations under the contract in an improper manner or simply refuses to fulfill them.
To secure the supplier's application. In this case, the bank guarantee confirms the seriousness of the supplier's intentions not only to participate in the auction, but also to sign the contract in case of victory.
To return the advance. It applies when the supplier has refused to fulfill its obligations under the contract.

Requirements for a bank guarantee under 223-FZ

Despite the relative liberality of Law 223-FZ, there are a number of requirements that it imposes on a bank guarantee.

The bank guarantee must be irrevocable;
It should contain the terms of its validity;
The customer has the right to reject it within 3 days from the date of receipt;
The bank guarantee must contain information about the obligations of the recipient and the rights of the customer, the contract between which was concluded;
The text must contain exact amount payments to the beneficiary in the event that the supplier does not fulfill the terms of the contract or partially fulfills them.

In conclusion, we note that many customers in the auction under 223-FZ make a requirement for a bank guarantee as mandatory. However, even if such a clause is missing in the tender documents, it will be more expedient for the supplier to obtain a bank guarantee. Firstly, it is received for more favorable terms than getting a loan. Secondly, most of the risks associated with concluding a contract are minimized.