The supplier provided a bank guarantee as security for the performance of the contract. Contract fulfilled

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One of the forms of ensuring the execution of a state or municipal contract is a bank guarantee. For the supplier, it is an alternative to depositing cash in the form of a fixed amount.

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What legal regulations govern

Issues of registration and requirements for a bank guarantee are well regulated in the legislation on the contract system. Requirements for a bank guarantee are spelled out in Art. 45 44-FZ, and the terms of the state contract are contained in Art. 96 44-FZ.

Also of great importance in the issue of regulating the requirements for this form of security belongs to the Government Decree of 2013 No. 1005 "On bank guarantees ...".

Until June 30, 2019, the participant has the right to provide a document only as a contract. But after the specified date, he will be able to use it to secure an application in electronic competitions and auctions. These changes were enshrined in Government Decree No. 626 of 2018.

The use of this form of security has many advantages for the supplier: it allows him not to divert large amounts of money from circulation when participating in purchases and makes it possible to participate in the implementation of several at the same time.

Concept and cases of provision

The concept of a bank guarantee is given in Part 1 of Art. 368 of the Civil Code. It is understood as a written payment to the beneficiary of a certain amount of money when making a demand for payment. Such a request comes in accordance with the terms of the obligation assumed by the supplier.

With regard to public procurement, funds are paid by the bank in favor of the state customer if the procurement does not fulfill its obligations. In the future, the supplier will be obliged to reimburse the debt to the bank.

There are three main groups of participants involved in the scheme for depositing security through a bank guarantee: the guarantor (bank), the principal (procurement participant or supplier), and the beneficiary or customer.

It should be noted that the legislation allows for the possibility of replacing the form of securing the performance of a contract during its implementation. So, if the security was paid in money, then it can be replaced by a guarantee under 44-FZ. At the same time, its amount should be reduced by the cost of work already performed by the time of replacement.

A bank guarantee under 44-FZ must be irrevocable. Its peculiarity lies in the fact that it is not allowed to withdraw, cancel or change.

According to the Civil Code, the essential conditions of a guarantee are an indication of the principal, the amount of the security and the duration of its validity. Whereas the list of requirements for this document under 44-FZ is much more extensive.

Requirements for the content of a bank guarantee are given in Part 2 of Art. 45 FZ-44. According to them, this document should contain the following information:

The amount of the bank guarantee to be paid by the guarantor to the customer in the established cases. According to Art. 96 44-FZ, these are situations of improper performance by the supplier of obligations under the state contract.
Obligations of the principal, the improper performance of which is subject to security through a bank guarantee.
The obligation of the guarantor to pay a penalty in the form of a delay in payment of a claim under a bank guarantee. The amount of such penalties is 0.1% of the amount payable for each day of delay.
The condition that the guarantor's obligations are considered fulfilled after the actual receipt of funds to the customer's account.
Terms of the bank guarantee based on the requirements of Art. 96 44-FZ.
Suspensive condition on the conclusion of a guarantee agreement on the obligations of the principal.
An established list of documents that are provided by the customer along with the requirement to pay the amount under the guarantee. It is compiled taking into account Government Decree No. 1005 of 2003. At the same time, it is not allowed to include in the list of documents judicial acts that confirm the failure to fulfill obligations by the supplier.

In the event that the procurement documentation contains an appropriate condition, the bank guarantee includes a condition that the customer has the right to write off funds from the guarantor's account in an indisputable manner if he has not fulfilled the customer's demand for payment under the bank guarantee within 5 working days , which is sent before its validity period has not expired.

Despite the stringent requirements for the content of the guarantee, a unified form of this document has not been developed.

What documentation does the bank request from the supplier

The terms for signing the state contract with the winner of the auction and the terms for issuing the guarantee are strictly limited. So, for example, there is a rule that the contract must be signed within 5 days.

That is why guarantees under the state order within the framework of 44-FZ are issued by banks according to the express method of assessing solvency, and the total issuance period is within 2-5 business days.

To obtain a bank guarantee, banks usually request the following set of legal and accounting documentation:

last year's tax returns and completed quarters;
income and expense ledger;
founding documents of the company(copy of the charter);
extract from the Unified State Register of Legal Entities;
other documents which confirm the financial stability of the company.

In rare cases, the bank requires the supplier to open a current account with it. Usually such a requirement is presented with a large amount of the guarantee.

What documents the customer must provide to the bank

The beneficiary, along with the demand for payment under a bank guarantee, must provide the bank with the following documentation:

Payment order, which confirms the advance payment to the supplier (if the advance payment was provided for by the contract).
A document that confirms the occurrence of a warranty event under the terms of the contract(if the warranty covers the warranty period).
A document confirming the powers of the executive body that signed the guarantee requirements(order on the appointment of the head, decision on election, power of attorney).

Validity

The term of the bank guarantee is one of the essential conditions. 44-FZ contains mandatory requirements for the terms of a bank guarantee. According to part 3 of Art. 96 44-FZ, it must be valid for at least 1 month after the expiration of the contract.

This requirement means that the terms of the document must be at least a month longer than the terms of the state contract. But the customer may establish other requirements: for them, the guarantee may exceed the terms of the state contract by two and three months.

It should be borne in mind that the terms of the contract do not always coincide with the terms of the work. So, this may additionally include terms for payment and warranty obligations. All this may lead to the need to issue a guarantee covering longer periods.

Although, under civil law, warranty obligations are not included in the term of the contract by default, but the judicial practice on this issue has developed ambiguous. Therefore, if there is a condition in the procurement documentation that the guarantee must cover the terms of the guarantee obligations, the participant will either have to issue it or prepare to appeal such a requirement in court.

Is it possible to return the bank guarantee after the execution of the contract?

Since the bank guarantee is irrevocable, none of the parties has the right to its preliminary withdrawal.

The bank guarantee in case of conscientious fulfillment of its obligations under the state contract is not returned to the supplier, and its validity period automatically expires one month after the completion of work.

Thus, a bank guarantee under 44-FZ is a popular form of securing the execution of a government contract. Within the framework of the contract system, only an irrevocable form of guarantee is used, the content of which is subject to strict requirements. The essence of this form of security is as follows: in the event that the supplier fails to fulfill its obligations under the state contract, the customer transfers a certain set of documents to the guarantor bank, and the bank must transfer the guarantee amount to it. In the future, the supplier is obliged to repay the debt to the bank. Under the new rules, information about bank guarantees is not subject to public disclosure, but the register of issued guarantees is still maintained.

Each participant in public procurement must know what contract enforcement is, what it is used for and in what cases it can be dispensed with. Experts of the Credit-Insurance Agency tell about it. At the same time, we took into account all the changes made to the procurement legislation in 2018. Separately, we will talk about how to get a bank guarantee.

Let's start by answering the main question. Enforcement of the contract is a monetary obligation that is provided by the winner of the tender at the conclusion of the contract to cover possible damage to the customer, in case of non-performance or poor performance by the supplier of his obligations.

Thus, if the contractor violates his obligations under the contract or performs it improperly, the customer is guaranteed to be able to compensate for the damage caused to him at the expense of the security received. If the amount of damage is greater than the amount of the security received, the customer has the legal right to recover the difference from the contractor in court.

ENFORCEMENT OF CONTRACTS UNDER 44-FZ

Legislatively, the issues of ensuring the execution of contracts under 44-FZ are regulated by Article 96 of the law. Let us consider the main provisions of this article in sufficient detail due to the fact that in 2018 serious changes were made to Law 44-FZ, including the procedure for ensuring the execution of contracts.

1. When making a purchase the customer is obliged establish a requirement to ensure the performance of the contract, writing it in the notice of procurement, procurement documentation, draft contract, invitation to participate in a closed procurement.

However, the law provides for exceptions to this rule. Establishment of a contract enforcement requirement is a right and not an obligation of the customer in cases where:

The purchase is made by means of a request for quotations or a request for quotations in electronic form, if the initial (maximum) price of the contract (IMCC) does not exceed 500 thousand rubles;

Procurement is made by conducting a request for proposals or a request for proposals in electronic form in cases where the subjects of the procurement are the supply of sports equipment and equipment for the needs of the Russian national teams, the supply of vital medicines, the supply of handicrafts or the provision of services to protect the interests of Russia in international courts;

The purchase is made from a single supplier.

2. The execution of the contract may be secured by the provision of a bank guarantee or the deposit of funds to the account indicated by the customer. Which method of security to choose - the customer decides on his own.

3. A bank guarantee for the purposes of securing the performance of a contract under 44-FZ must be issued by a bank that meets the requirements of Art. 45 of this law.

4. The term of the bank guarantee must exceed the term of the contract by at least 1 month. The winner of the procurement must carefully read the procurement documentation, as the exact expiration date of the bank guarantee may be indicated there. If not, you should be guided by the requirements of the law 44-FZ.

5. The contract is concluded only after the winner of the procurement provides the contract execution security. If the winner fails to provide security for the performance of the contract within the prescribed period, then he is considered to have evaded the conclusion of the contract. As a result - inclusion in the register of unscrupulous suppliers.

6. The amount of security for the performance of the contract under 44-FZ should be from 5 to 30 percent of the initial (maximum) price of the contract. If the NMTsK exceeds 50 million rubles, then the amount of security will be from 10 to 30 percent of the NMTsK, but not less than the amount of the advance, if such is stipulated by the contract. If the amount of the advance payment exceeds 30 percent of the NMTsK, then the amount of the security is set at the amount of the advance payment.

7. During the execution of the contract, the supplier shall have the right to provide the customer with a contract performance security reduced by the amount of the fulfilled obligations stipulated by the contract, in exchange for the previously provided contract performance security. This may change the way the contract is enforced.

This provision of the law may be relevant for participants who did not have time to issue a bank guarantee to ensure the fulfillment of obligations under a state contract in a timely manner. In this case, the execution of the contract can be secured in cash, and in the future, cash can be replaced by a bank guarantee. From an economic point of view, this is not profitable, but an alternative to such a solution is to include the winner of the purchase in the register of unscrupulous suppliers for evading the conclusion of a contract.

8. If during the course of the procurement the price was reduced by 25 percent or more in relation to the NCMC, the procurement participant with whom the contract is concluded provides security for the performance of the contract, taking into account the anti-dumping measures provided for in Art. 37 of the law 44-FZ.

Anti-dumping measures are as follows. If, during a tender or auction, the NMTsK is more than 15 million rubles and the procurement participant with whom the contract is concluded, the price of the contract is proposed, which is 25 percent or more lower than the NCMC, the contract is concluded only after such a participant provides a contract performance security in an amount exceeding 1.5 times the size of the contract performance security specified in the tender or auction documentation, but not less than in the amount of the advance payment (if the contract provides for the payment of an advance payment).

Moreover, if the NMCC is 15 million rubles or less and the procurement participant with whom the contract is concluded offered a contract price that is 25 percent or more lower than the NMCC, then an increase in the amount of security can be avoided by providing the customer with information confirming the good faith of such a participant on date of application.

It is possible to confirm the good faith of a procurement participant by providing the customer with information from the register of contracts confirming the experience of such a participant in executing several contracts for comparable amounts over the past few years. You can read more about this in part 3 of Art. 37 of the law 44-FZ.

9. The provisions of Law 44-FZ on securing the performance of a contract do not apply in cases where:

The contract is concluded with the procurement participant, which is a state institution;

Procurement of services to provide a loan;

The subject of the procurement is the issuance of a bank guarantee.

Assistance in obtaining bank guarantees, credits and loans for procurement participants.

So, we have learned that both cash and bank guarantees can act as security for the performance of a contract under 44-FZ. Which option would be preferable for the contract executor? Of course, a bank guarantee. Taking money out of circulation is not the best way out. Money must work and make a profit. Most companies are short of working capital and regularly use bank loans, the rates on which today average 12-15 percent per annum. At the same time, the bank's commission for providing a guarantee to ensure the performance of a contract under 44-FZ usually does not exceed 3-4 percent per annum. The difference is obvious. But the choice, of course, will be yours.

REQUIREMENTS FOR BANK GUARANTEES UNDER 44-FZ

What requirements should a bank guarantee for the performance of a contract under 44-FZ meet? To answer this question, one has to refer to Art. 45 of this law:

1. As security for applications and performance of contracts, customers accept bank guarantees issued by banks that meet the requirements established by the Government of the Russian Federation. These requirements relate to the size of the bank's capital and the level of the credit rating according to the national rating scale.

Detailed requirements for guarantor banks are set out in Decree of the Government of the Russian Federation dated April 12, 2018 No. 440 “On requirements for banks that are entitled to issue bank guarantees to secure applications and fulfill contracts”.

The current list of banks that meet the requirements is published several times a month on the official website of the Ministry of Finance of the Russian Federation. As of December 2018, the list included more than 200 credit institutions.

2. A bank guarantee under 44-FZ must be irrevocable and must contain:

The amount of the bank guarantee payable by the guarantor to the customer;

Obligations of the principal, the proper fulfillment of which is ensured by a bank guarantee;

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;

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 customer's account;

Validity period of the bank guarantee;

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;

The list of documents established by the Government, provided by the customer to the bank simultaneously with the requirement to pay the amount of money under a bank guarantee;

Condition on the customer's right to indisputable debiting of funds from the guarantor's account (in cases provided for by the procurement documentation).

3. Information on the bank guarantee for the performance of the contract must be included in the register of bank guarantees posted in the Unified Information System in the Field of Procurement (UIS), no later than one business day following the date of its issue, or the day when changes are made to the conditions of the banking guarantees.

Please note that from July 1, 2018, the register of bank guarantees in the EIS became closed. Only the customer of the procurement can check the availability of a bank guarantee in the register, and such functionality is not available to the contractor. If it is necessary to verify the authenticity of a bank guarantee, the contractor must contact the guarantor bank directly using the contact numbers listed on the official website of the bank. In addition, the guarantor bank, at the request of the principal, is obliged to provide an extract from the register of bank guarantees, certifying it with its seal. Such an extract serves as confirmation of the fact of issuing a bank guarantee and can be presented to the customer, to the Federal Antimonopoly Service or to the court in the event of a dispute.

Bank guarantees under 44-FZ, 223-FZ, 185-FZ

Fast, inexpensive, minimum package of documents

HOW TO OBTAIN A BANK GUARANTEE

In conclusion, the experts of the Credit Insurance Agency offer you recommendations that, in our opinion, will allow you to avoid unpleasant situations associated with participation in procurement procedures.

1. When deciding whether to participate in procurement, consider the need to provide performance security. If your company does not have available funds or is not ready to withdraw them from circulation to be used as security for the duration of the contract, take care of obtaining a bank guarantee in advance. You can always find out from the specialists of the Credit Insurance Agency the cost of the guarantee you need in various banks and choose the most favorable conditions.

2. Plan the costs associated with participation in purchases, not only in size, but also in time. It is necessary to understand not only for how long the bid security or contract performance security will be frozen, but also by what date this security must be provided. In order to save money and time, consider using the limit on bank guarantees. By setting a limit in advance in one of the banks, you can quickly and on favorable terms receive bank guarantees when you need it. Our experts will help you do it.

3. Realistically assess the possibility of obtaining a bank guarantee for your company in large banks. Such banks often declare very low commission rates for issuing guarantees. But, as it turns out in practice, to submit such an application, it is necessary to prepare a large package of documents. At the same time, the official deadline for making a decision on the application is from 2 weeks and is not always kept. Be prepared for constant requests for more information.
Think about whether you are ready for such a marathon. Specialists of the Credit Insurance Agency will always be able to select several banks for your company, where you can get guarantees under 44-FZ in a short time with a minimum package of documents.

4. Always evaluate the profitability of the purchase. Before bidding, set a price limit below which you cannot go. Remember that a price reduction of 25 percent or more can increase the size of the performance security by 1.5 times. Consider if you can afford it. Evaluate in advance the possibility of obtaining a bank guarantee for such an amount and its cost by contacting the Credit Insurance Agency.

5. Before submitting an application, assess the availability of your own financial resources for the execution of the contract. Perhaps the terms of the purchase do not provide for advance payment. In this case, we recommend that you apply to the bank in advance for obtaining credit funds.

If you are accustomed to value your time, then the experts of the Credit and Insurance Agency will help you find financing for the execution of the contract. This can be either a loan for replenishment of working capital or tender factoring from our partner banks.

Good luck shopping in the New 2019!

About what changes in bank guarantees will occur in the law "On the contract system" from July 1, 2019. can be found in a new article on our website.

Credit Insurance Agency - bank guarantees, credits and loans for procurement participants!

One of the principles of 44-FZ is responsibility for the result and efficiency of procurement. In other words, the government customer needs guarantees that the winner of the tender will sign the contract and fulfill it in compliance with all the stated conditions.

There are two types of guarantees in public procurement:

- insurance in case the winner refuses to sign the won contract.
Enforcement of the contract- insures in situations where the supplier does not fulfill the contract or violates its terms.

There are two ways to secure a bid or fulfill a contract.

Deposit your own money as collateral. To secure the application - to, and to secure the contract - to the customer's current account. The money will be "frozen" until the winner of the tender is determined or all the conditions of the contract are fulfilled.
Provide a bank guarantee. The bank will reimburse the state customer for the guarantee amount in case of improper performance by the supplier of its obligations. A bank guarantee is issued in accordance with the requirements of 44-FZ, and the supplier pays a commission to the bank for receiving it.

What to choose to secure the contract - a cash deposit or a bank guarantee - is decided by the supplier.

When is a bank guarantee issued?

Bank guarantee to secure the application

The security is from 0.5 to 5% of the initial maximum contract price: the exact amount is always written in the procurement documentation.

The validity period of the bank guarantee provided as security for the application must be at least two months from the date of the deadline for submitting applications. Upon completion of the procedure, the commission for the bank guarantee is not returned to the supplier.

Bank guarantee upon performance of a contract in an electronic auction or tender

The winner of the electronic auction is obliged to sign the contract and provide a bank guarantee within 5 calendar days from the date the customer places the contract on the electronic trading platform.

The security amount is from 5 to 30% of the initial contract price or equal to the advance payment. In case of improper performance of the contract, the bank will pay fines and penalties to the customer for the supplier.

In any of the above cases, the bank guarantee is irrevocable, valid for a month from the date of fulfillment of obligations under the contract.

When can the customer demand payment under a bank guarantee?

The winner, having won the tender, refuses to sign the contract. At the same time, the participant secured the application with the help of a bank guarantee.
The supplier does not fulfill the contract or violates its terms. In this case, the customer must unilaterally terminate the contract or provide evidence that the supplier is violating the terms of the contract.

According to the legislation, the demand of the state customer for payment under the guarantee is extrajudicial, that is, it can be put forward directly to the contract executor within 1 month after the expiration of the period for fulfilling obligations under the contract.

Who can issue a guarantee?

Only financial institutions included in the list of the Ministry of Finance of the Russian Federation. Check in advance if the bank in which you have a current account is on this list.

The electronic agent Kontur.Spectrum will help you get. Prepare just one application, which will go to several banks. Compare the terms of guarantees and send documents to the bank directly from the service.

What will the bank require from the supplier?

To successfully and quickly obtain a guarantee, find out in advance the conditions of the bank: terms of issue, commission rates, a list of documents, and so on.

The reputation of the company is one of the most important conditions for issuing a guarantee. If the company works in good faith, pays taxes on time and reports to the regulatory authorities, it will certainly receive a bank guarantee.

To provide guarantees, most banks require the same list of documents from the client as for a loan:

constituent documents (Charter, PSRN, TIN),
full reporting on the financial condition and accounting for 1 year,
completed preliminary application,
purchase link.

For many banks, it is important that the procurement participant has an account opened in it. You also need to be prepared for this so as not to waste time negotiating with banks in which your company does not have an account.

In a bank with which good business relations have already been established, a bank guarantee can be issued according to a simplified scenario. As a rule, quarterly financial statements are sufficient for the financial analysis of a company.

How much does a bank guarantee cost?

The cost of a bank guarantee is determined individually and depends on:

its duration,
the degree of risk of payment on it,
the quality of ensuring the recourse claims of the bank to the client.

As a rule, the commission for issuing a guarantee is from 1% to 5% of the amount of the required security.

The term of receipt is from 1 day to several days. Recently, these terms are being reduced, as the bank guarantee becomes an increasingly popular banking product, and banks consider electronic applications.

Bank guarantee limit

Before participating in an electronic auction or competition, you can find out in advance whether the bank will give you a guarantee if you win. To do this, you need to contact the bank to set the limit of bank guarantees. In this case, the bank asks you for copies of documents and sets a limit. True, two conditions must be taken into account:

you will have to pay for setting a limit in some banks - about 1% of the guarantee amount,
if the financial statements worsen in the next quarter, you will not be issued a bank guarantee.

Setting a limit is helpful. Firstly, this will allow you to find out whether it is worth counting on receiving a bank guarantee in principle, and secondly, after you win the tender, the bank will make a decision to issue a guarantee much faster.

What to do if there are a couple of days left to receive?

It is important for the winner to have time to receive a bank guarantee on time. If you miss the deadline for signing the contract, there is a risk of being included in the register of unscrupulous suppliers. How to be in this case? Communicate with the bank via the Internet, and sign documents with a qualified electronic signature. It is much faster and more convenient than filing paper documents.

If you decide to participate in electronic auctions and competitions, study in detail the issue of obtaining a bank guarantee, find out your limit or calculate the cost of a guarantee in advance for each interesting purchase. Subject to the terms of the contract, there will be no claims from the state customer, and therefore no payments under your bank guarantee.

In the comments to the articles you can get answers from other suppliers, and experts will answer

To begin with, let's define the range of NPAs to be analyzed. These will be:

Federal Law No. 44-FZ of April 05, 2013 "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - the Law on the contract system);

Decree of the Government of the Russian Federation dated 08.11.2013 No. 1005 “On bank guarantees used for the purposes of the Federal Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”” (hereinafter - Decree No. 1005);

Based on these norms of the current legislation, the following conclusions can be drawn:

1.1 The concept of an independent (until June 1, 2015 - bank) guarantee is enshrined in Art. 368 of the Civil Code of the Russian Federation. Under an independent guarantee (hereinafter referred to as the guarantee), the guarantor assumes, at the request of another person (principal), the obligation to pay a certain amount of money to the third person (beneficiary) indicated by him in accordance with the terms of the obligation given by the guarantor, regardless of the validity of the obligation secured by such a guarantee.

The requirement for a certain amount of money is considered to be met if the terms of the guarantee allow the amount of money to be paid at the time the obligation is fulfilled by the guarantor. A guarantee is a personal, non-accessory way of securing an obligation. That is, the guarantee is not related to the main obligation (delivery of goods to the contract).

The essence of the guarantee lies in the fact that in addition to the property of the debtor, which is initially liable to the creditor, the latter acquires the right to satisfy his claims at the expense of the property of another person - the guarantor.

A bank guarantee is one of the varieties of an independent guarantee.

1.2. General requirements for the content of the guarantee are established in Part 4 of Art. 368 of the Civil Code of the Russian Federation. It should indicate:

Date of issue;

Principal;

Beneficiary;

The main obligation, the performance of which is secured by a guarantee,

The amount of money to be paid, or the procedure for determining it

The duration of the guarantee;

Circumstances under which the amount of the guarantee must be paid;

1.3. In accordance with the provisions of Art. 44 and 96 of the Law on the contract system, when conducting procurement procedures, the execution of the contract must be ensured in one of the following ways:

Depositing funds;

Bank guarantee;

1.4. The requirements for a guarantee that serves to secure government contracts concluded in accordance with the Law on the contract system are specified in Part 2 of Art. 45 and Art. 96 of the Law on the contract system. In particular, the guarantee must be irrevocable and must contain the following information:

The amount of the bank guarantee payable by the guarantor to the customer in case of improper performance of obligations by the principal;

The term of the bank guarantee, which must exceed the term of the contract by at least one month (part 3 of article 96 of the Law on the contract system);

Obligations of the principal, which are secured by a guarantee;

The obligation of the guarantor to pay a penalty in the amount of 0.1% of the amount of money payable for each day of delay;

1.5. The general mechanism for the withdrawal of a guarantee by the beneficiary is established in Part 3 of Art. 371 of the Civil Code of the Russian Federation. As a general rule, the beneficiary may waive the guarantee if the terms of the guarantee allow such a possibility. From the moment the beneficiary refuses the guarantee, the obligation of the guarantor is considered terminated.

The withdrawal of the guarantee must be made in the same form in which the guarantee itself was issued. This rule corresponds to the provisions of paragraph 1 of Art. 452 of the Civil Code of the Russian Federation, which regulates the procedure for changing or terminating the contract.

Withdrawal of the guarantee may be subject to the consent of the beneficiary. In this case, the withdrawal of the guarantee does not enter into force from the moment the will of the guarantor is expressed, but from the moment the consent of the beneficiary is received. That is, if the guarantee provides that it can be revoked with the consent of the beneficiary, then the revocation is formalized by an agreement between the beneficiary and the guarantor.

1.6. The legal norms of Federal Law No. 44-FZ do not contain a direct indication that the customer, in the event of early execution of the contract by the contractor, has the right or obligation to refuse a bank guarantee. Such a situation can be considered a gap in the law, that is, a complete or partial absence of legal norms necessary for a professional legal assessment of a controversial issue. In the text of the contract, this issue is also often not settled.

In part 7 of Art. 96 of the Law on the contract system indicates the possibility for the customer to reduce the amount of the contract security by the amount of the obligations fulfilled. Using this method of eliminating gaps in law, as an analogy of the law, it can be argued that in the event of early execution of the contract, the customer has every right to refuse to provide it either by returning the money to the contractor or by refusing the bank guarantee.

1.7. According to Part 7 of Art. of the Law on the contract system upon the occurrence of the cases specified in Part 6 of Art. Art. 44 of the Public Procurement Law (rejection of the application, cancellation of the supplier's determination, etc.), the bank guarantee is not subject to return to the guarantor and collection on it is not made.

Using the method of evidence “by contradiction” (ab absurdo) and reasoning by analogy, one can conclude that if the circumstances specified in Part 6 of Article 44 of the Contract System Law do not occur, the guarantee can be returned to the contractor.

1.8. Clause 12.1 of Resolution No. 1005 indirectly states that the beneficiary has the right to return the bank guarantee to the bank or send the guarantor a notice of termination of the principal's obligations under the guarantee.

1.9. In a letter from the Ministry of Economic Development dated 18.12. 2015 No. D28i-3722 states that in case of proper performance by the supplier (contractor, performer) of the main obligation in full and within the time period established by the contract, the customer has the right to return the security for the performance of the contract before the expiration of the security under the contract.

1.10. In a letter from the Ministry of Economic Development dated 18.11. 2015 No. D28i-3462 states that warranty obligations on the subject of the executed contract are regulated by civil law and do not require additional security from the supplier (contractor, performer), except as provided by the contract. Thus, when resolving the issue of withdrawing a guarantee under an already executed state contract, it is necessary to be guided by the provisions of the Civil Code of the Russian Federation.

1.11 In a letter from the Ministry of Economic Development dated 10.09. 2015 No. D28i-2763 states that the Law on the contract system does not provide for the procedure for the customer to waive his rights under a bank guarantee provided as security for an application for participation in the procurement by sending a corresponding notification to the bank that issued the bank guarantee. This letter contains a reference rule to paragraphs 1 and 2 of Art. 378 of the Civil Code of the Russian Federation, which govern the waiver of the guarantee by the beneficiary.

1.12. According to the general rule, which is established in paragraph 4 of Article 329 of the Civil Code of the Russian Federation, the termination of the main obligation entails the termination of the obligation that secures it, unless otherwise provided by law or contract. One such case, which is established by law, is the issuance of a guarantee.

1) The customer's refusal of the guarantee in case of early execution of the contract does not contradict the requirements of the legislation of the Russian Federation and the terms of the state contract No. 179/2018-KS of 04/09/2018;

2) The customer may waive his warranty rights in one of the following ways:

Transfer the original guarantee to the guarantor with documentary fixation of the fact of transfer;

Send the guarantor a unilateral waiver of their rights under the guarantee;

Conclude an agreement with the guarantor on the termination of the guarantee;

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 revealed 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 working 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,