The list of bank guarantees and the procedure for their provision are fully regulated by the Federal Law of the Russian Federation No. 44 and the requirements of the Ministry of Finance Russian Federation. Such guarantees are used in the overwhelming majority of cases to ensure a set of obligations under contracts.
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In order for the customer to accept a guarantee as direct security, it is necessary to without fail create conditions for such a procedure to fully comply with legal requirements.
To understand what features the register of banks issuing bank guarantees according to 44-FZ, you need to familiarize yourself with legal basis, with requirements and content, nuances of obtaining, terms of validity, possible grounds for refusal, as well as with an exhaustive list of guarantees.
The concept of bank guarantees is determined by the current Civil Code of the Russian Federation. It represents a commitment financial organization, drawn up in writing, for the payment in favor of the creditor of a sum of money on the basis of a special requirement.
In other words, if a participant in the procurement procedure does not fulfill his own obligations to customers, then all costs for him are reimbursed by banks. In the future, suppliers must repay the existing debentures to credit institutions.
The following key links stand out:
In some cases, another subject is added - a broker, which is an intermediary between the participants in the transaction.
Principals under bank guarantees without fail provide these guarantees to ensure the fulfillment of the list of their own obligations.
As for the beneficiaries, they are the beneficiaries. It is they who have legal grounds for applying to banks for damages in case of violation of obligations by the second party.
Municipal and government customers to secure procurement bids under Federal Law No. 44, bank guarantees are accepted, which are issued by banks included in a special register.
The current list is additionally regulated by the norms of Article No. 74.1 of the current Tax Code of the Russian Federation.
The correct execution of obligations of a legal nature is ensured through coercive measures. One of the most popular methods of security is the so-called special method, which is used only if there is a certain typology of obligations.
In accordance with the norms of Article No. 329 of the Civil Code of the Russian Federation, the fulfillment of current obligations is most often ensured by:
It should be noted that the above list is not exhaustive and closed, which, in turn, provides for the possibility of supplementing if necessary.
Contracts may also use other measures aimed at timely fulfillment of obligations. At the same time, methods not specified in the Code may be prescribed in such documents.
When it comes to ensuring the fulfillment of a certain list of obligations to implement the conditions government contract with the help of bank guarantees, not only the requirements of the Civil Code, but also additional conditions specified in Federal Law No. 44 may come into force.
The basic requirements include the following:
| Requirement #1 | Bank guarantees in the framework of public procurement operations can only be issued by one of the accredited financial institutions. In other words, the bank must be included in the unified register of companies providing the type of guarantee in question for tax purposes. The full list includes more than 300 companies. The list is subject to mandatory revision once every 60-90 days. It is important to remember that a guarantee issued by another organization cannot be used as security for state and municipal contracts. |
| Requirement #2 | The received guarantee must be entered into a specialized register located in the unified state information system. It is allowed to fix up-to-date information in closed databases. This is especially common in cases where it is supposed to work with data related to state secrets. |
| Requirement #3 | Bank guarantees can be provided both electronically and in writing. In the first case, confirmation takes place taking into account the use of EDS. As for the written analogue, its design must fully comply with the requirements contained in Decree of the Government of the Russian Federation No. 1005. |
In accordance with the norms of Article No. 45 of the Federal Law of the Russian Federation No. 44, bank guarantees cannot be withdrawn under any circumstances.
It is allowed to indicate the right of the customer to an indisputable write-off of capital from an individual bank account current guarantor. This is only possible if the bank cannot satisfy the claims within 5 working days.
With regard to court decisions that confirm the fact that the principals did not fulfill their obligations, they cannot be transferred to customers. Therefore, this condition is never included in the content.
First of all, the interested party needs to determine the financial institution that will act as a direct guarantor in the framework of the fulfillment of contractual conditions. The choice can only be made from the list of banks that is contained on the official portal Ministry of Finance of the Russian Federation.
It is necessary to pay close attention to the fact that many banks require the opening of an account in a particular organization.
In the future, it is important to clarify the conditions on the basis of which the selected bank will be able to provide a guarantee to the contract participant. All issued bank guarantees in favor of an LLC or JSC are subject to mandatory registration with single register EIS. This norm is regulated by Article No. 45 of Federal Law No. 44.
Banks that issued appropriate guarantees to participants in procurement events enter information about organizations into the register on their own the next day after the direct issuance of the security. With regard to cases where the issued guarantee is not entered in the register, customers undertake to refuse to accept it.
Within the framework of federal legislation, bank guarantees may be allocated in favor of state bidders in order to secure bids. That is why the duration of such guarantees can be very diverse.
According to the norms of Article No. 44 of the normative act, the period of validity of the guarantee cannot be less than 60 days from the date of expiration of the declarative terms.
According to Article No. 96 of the same Federal Law No. 44, the validity period of the BG must necessarily be higher than 30 days than the time period during which the procurement contract continues to operate.
Bank guarantees of an irrevocable type are considered the most reliable ways to secure existing obligations. This is due to the fact that such a guarantee instrument cannot be withdrawn by financial institutions even in a situation of emergency. In other words, the guarantors undertake to fully fulfill their obligations.
Article No. 378 of the Civil Code F contains data that the obligations of guarantors to the direct beneficiaries expire:
Among the grounds for refusing to accept bank guarantees are the following:
An important point is that in case of refusal to accept the guarantee within the prescribed period, which does not exceed three working days, the customer must notify the company that issued the guarantee of the fait accompli.
Information is provided in written or electronic format. Additionally, the reasons that served as objective grounds for filing a refusal are prescribed.
Bank guarantees, which from the side of direct participants in procurement procedures to secure bids, must be included in a special register, which is posted on the portal of the unified information system Russian Federation.
As exceptions, only those guarantees can be singled out that are transferred to secure tenders, if the corresponding bids are related to classified information.
Each specific bank transfers extracts from the unified register of guarantees in favor of the principals. Issuing financial institution includes up-to-date information on the procedure to the registry in question. One day is allotted for the implementation of this procedure.
As for the maintenance of the register and the specifics of placing information in the unified data register, these procedures are carried out by the competent departments of the Federal Treasury.
The following documents and data may legally be included in the register of bank guarantees:
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As of January 2019, the Law on the contract system (44-FZ) is in force as amended by Law No. 475-FZ dated December 29, 2017. The amendments have not yet affected the requirements for financial institutions that can issue.
The norm is part 1 of Art. 45 44-FZ, according to which customers accept bank guarantees only if the guarantor is on the list under Art. 74.1 tax code(NC). The list is maintained by the Ministry of Finance on the basis of information from the Central Bank (CB). This register of banks of the Ministry of Finance for the issuance of bank guarantees is presented on the official website of the ministry.
The requirements that banks are currently facing are compliance with the parameters for accepting guarantees for tax purposes. Based on part 3 of Art. 74.1. NC, the bank must have:
If the fact of absence or excess of information is revealed, then the register of banks of the Ministry of Finance, for which bank guarantees can be issued only if there is an institution in it, is corrected. The Ministry within 5 days from the date of discovery of the fact receives instructions from the Central Bank.
New requirements for banks establish those amendments to 44-FZ, which will come into force on 06/01/2018. The original effective date of 01/01/2018 has been postponed.
Edition of Art. 74.1. The amended Tax Code will come into force on January 29, 2018 (based on Federal Law No. 466 of December 29, 2017). According to the changes, Vnesheconombank (a state corporation) will receive the authority to issue a bank guarantee. It will have special requirements. The amount of issuance of guarantees for this bank will be determined by the government, taking into account the provision to the tax authorities.
How information about Vnesheconombank will be reflected in the register has not been determined. We believe that information about it will be provided equally with other banks.
From March 18, 2018, the amendments to the GD No. 1005 of November 8, 2013 will come into force (the GD of January 15, 2018 No. 11 is being introduced). The requirements for bank guarantees (BG) will be adjusted, the amendments will not affect the direct change in the conditions for financial entities. Therefore, by that time, the register of banks of the Ministry of Finance under 44-FZ will exist in the same format.
However. some details of the March amendments are worth mentioning. The Bank (in accordance with GD No. 11 of January 15, 2018) in the issued document will be required to confirm the readiness to demand payment of the amount of money in relation to:
Very noticeable changes will occur from 06/01/2018 (No. 475-FZ). First of all, the requirements for banking organizations on the issuance of BG: there will be others, government ones. After it has been formed new registry banks that meet the new conditions, it will be published on the website of the Ministry of Finance.
Based on the rules current law dated July 29, 2017 No. 267-FZ, which will come into force on June 1, 2018, when establishing requirements for banks, the government introduces:
In the existing draft resolution on the requirements for banks that are entitled to issue BGs to secure applications and fulfill contracts (the document is available for review
Approved by the Ministry of Finance of Russia, this is a list of trustworthy credit institutions that comply with the requirements of the current tax (clause 3, article 74.1 of the Tax Code of the Russian Federation) and procurement legislation ().
In accordance with the Law on the contract system 44-FZ and the list approved by the Ministry of Finance, the list of banks whose bank guarantee is recognized as reliable is necessary for the customer to verify the procurement participant or the winning supplier. And the list of banks will help the participant to choose an organization that fully meets the requirements and is considered authorized.
Not every banking institution issues a BG, and not every financial and credit organization can enter the legitimate under 44 FZ. The requirements for credit institutions are enshrined in Part 1 of Art. 45 44-FZ.
From 06/01/2018, RF GD No. 440 dated 04/12/2018 comes into force. According to him, the requirements for banking structures, which have the right to provide procurement participants and suppliers of BG. Under the new rules, such banks are required to:
For those organizations that currently do not meet these criteria, the Government of the Russian Federation has determined a transitional period - until 01/01/2020. During this time, structures with a rating of at least “B-(RU)”, as well as “ruB-” have the right to provide procurement participants and suppliers with BG.
The list of trustworthy structures is updated monthly. The place where each customer can view the list of banks 44 FZ is the website of the Ministry of Finance. To get acquainted with it, the user needs to go to the official
Any bank licensed by the Central Bank has the right to issue bank guarantees. However, each beneficiary (the customer in whose favor the guarantee is issued) sets its own requirements for banks.
Therefore, before issuing a bank guarantee, you need to know exactly the requirements of the beneficiary to banks in order to choose the right one.
Customer requirements are unified and specified in Article 45 of 44-FZ. According to this article, the Ministry of Finance is the body responsible for setting the requirements for financial institutions that issue bank guarantees. On a monthly basis, the Ministry of Finance publishes an updated register of institutions that are eligible for this activity.
From June 1, 2018 years, the requirements for banks were changed. As mentioned above, in order to get on the list of the Ministry of Finance, the bank must meet a number of requirements:
be licensed by the Central Bank to carry out
activities;
have equity capital of at least 300 million rubles;
According to 185-FZ, customer requirements are also unified and are specified in Art. 206 PP-615.
According to it, the bank must comply with the requirements of paragraph 3 of Art. 74.1 of the Tax Code of the Russian Federation. The list of banks meeting these requirements is also published monthly by the Ministry of Finance.
Within the framework of 185-FZ, overhaul purchases are carried out, and in order to receive security for such a tender, it is necessary to issue a guarantee in a bank that meets all legal requirements.
In commercial purchases and in tenders under 223-FZ, each customer sets its own requirements for banks and indicates them in the tender documentation. It happens that they coincide with the requirements of 44-FZ, but often the conditions for a bank guarantee are much simpler and the supplier can choose a bank that is not included in the list of the Ministry of Finance.
In order to determine the bank whose guarantee will be accepted by the customer in the procurement under 223-FZ, it is necessary to correctly collect information from the tender documentation and prepare a document that meets all the conditions.
We have prepared a video in which we told in detail and showed how to do it:
You will receive a quote from suitable banks and will be able to apply for the best one.
[bank guarantee calculator]
RusTender cooperates with more than 25 banks, all of which are included in the list of banks of the Ministry of Finance and comply with all legal requirements under 44-FZ and 185-FZ.
Our specialists in short time agree to receive BG. Cooperation with many banks from the register, which have the right to issue bank guarantees, makes it possible to provide you with several options to choose from so that you can choose the most advantageous offer.
LLC MCC "RusTender"
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In order to take part in the tender, the company must secure its obligations. This can be done, for example, with a bank guarantee. But how to get such a document and can you apply to any credit institution for its execution? We understand in this article.
Initially, you need to decide what constitutes a bank guarantee. The law provides for two ways to ensure financial obligations tenderers: collateral and bank guarantee. The second option is more convenient, because it allows suppliers not to withdraw large amounts from circulation while participating in the auction. A bank guarantee is a written obligation of one participant in a transaction (guarantor), taken by him at the request of another participant (principal), to pay a sum of money to a third party (beneficiary) upon the occurrence special conditions under the contract upon presentation of a demand for payment by the beneficiary. Simply put, a bank guarantee is an obligation of a financial institution to pay off material damage (pay a sum of money) to the party specified in the contract if the debtor fails to fulfill or improperly fulfills the terms of the contract concluded with this party.
All bank guarantees can be divided into five types depending on their scope:
Let's consider each type in more detail.
Guarantee for the fulfillment of obligations under the contract. It is provided by the winning bidder to the customer and is a legally necessary condition for concluding a government contract. In case of improper performance or non-performance of the terms of the contract by the contractor, the bank pays the guarantee amount to the creditor.
Bank guarantee to secure the application. It is provided by participants of competitions or auctions when applying for participation. The document is a guarantee that the winner will fulfill its obligations to sign a contract with the customer.
Customs guarantee. It's a commitment credit institution guaranteeing payment by the executor of customs payments. Such a guarantee gives a delay in customs payments, it must be provided to the customs authorities.
Advance payment refund guarantee. Sometimes the terms of the contract provide for the receipt of an advance by the contractor. Before receiving the amount of money, the supplier is obliged to provide the customer with a guarantee of the return of the advance payment. The document is designed to protect the customer from misappropriation of the advance.
Guarantee in favor of the tax authorities. Provided to the tax authorities to ensure the payment of tax payments. For example, a VAT refund guarantee entitles you to receive tax deduction for VAT without holding a cameral tax audit and in a short time frame.
To obtain a bank guarantee, you need to contact the bank that issues these documents. However, not all credit institutions have such powers.
Requirements for banks that issue bank guarantees are determined by the purposes of obtaining the document. For example, a guarantee under Article 45 of Federal Law No. 44-FZ dated April 5, 2013 (hereinafter referred to as 44-FZ) or a guarantee in favor of the tax authorities must be issued by a bank that meets the conditions of Article 74.1 of the Tax Code of the Russian Federation. Thus, only those financial institutions that are included in a special list of banks are entitled to provide such a guarantee. It can be found on the website of the Ministry of Finance of the Russian Federation. In order for a credit institution to be included in this list, at the current moment it must meet the following requirements, that is, have:
Requirements for banks issuing a guarantee for participation in a tender for federal law dated July 18, 2011 No. 223-FZ (hereinafter - 223-FZ), are not registered. In practice, customers put forward quite stringent conditions. So, although a credit institution should not necessarily be included in the list of banks of the Ministry of Finance, it needs, for example, to be in the TOP-50 of the best banks or even in the TOP-10 according to the register of the Ministry of Finance of Russia.
As mentioned earlier, the list of banks that are entitled to issue bank guarantees to secure applications and fulfill contracts and that meet the requirements established by parts 1 and 1.1 of Article 45 of the 44-FZ is published on the website of the Ministry of Finance of the Russian Federation. This register is maintained and updated based on data provided by central bank RF.
44-FZ puts forward strict requirements for credit institutions that have the right to issue bank guarantees. The list of banks is shrinking: if quite recently it numbered more than 300 credit institutions, today the list of the Ministry of Finance includes 203 banks. The registry is updated quite often - up to five updated lists are posted during the month. This information should be monitored regularly by potential bidders, as some banks may appear on the list and others may disappear from it.
Most of the defendants in the register of the Ministry of Finance are the largest Russian banks. There are also regional lending institutions.
It is not worth choosing a bank to receive a bank guarantee only on the basis of the list of the Ministry of Finance. First, all banks different conditions and requirements to the principal; secondly, not all banks are engaged in issuing guarantees for collateral in the field of public procurement: that is, they have the right to issue such documents, but do not use this right. Thus, a potential bidder should choose a bank in advance, as the selection and clarification of conditions can take a significant amount of time.
Choosing a bank only according to the register of the Ministry of Finance, as noted earlier, is not quite the right approach. The presence of a financial institution in this list is far from the only selection criterion. It is necessary to pay attention to some other factors, according to which it is possible to single out the most profitable terms obtaining a bank guarantee. These factors include:
Conditions for issuing a bank guarantee. As a rule, this includes the amount of the bank's remuneration for issuing the document. The guarantee is not provided free of charge, the commission is a fixed percentage, which depends on the guarantee amount, the terms for providing the document and the internal regulations of the financial institution. The average size remuneration varies and also depends on the presence or absence of collateral.
The amount of the bank guarantee. Most banks, when determining the amount of a document, are guided by financial stability potential bidder. In each case, this amount will be determined individually. We must not forget that any credit institution has its own "ceiling" for the total amount of all issued bank guarantees. By law, it is 25% of the amount of equity capital.
Interest rate. Highly important point, since no company is insured against non-performance or improper performance of its obligations under the contract. If the contractor still failed to fulfill the terms of the contract, then the bank that acted as the guarantor returns the guarantee amount to the beneficiary. The rate in this case is different for each financial institution, it can vary between 10-30%.
Payment refund period. When the amount under the guarantee has already been paid, the company that owns the guarantee must reimburse the bank with interest. Typically, the repayment period is no more than one year.
Security for the issuance of a bank guarantee. This is a well-known pledge. Today, banks are very meticulous about the types of collateral when providing their guarantee obligations. Most lending institutions prefer as collateral real estate, but in some cases it is possible to obtain a bank guarantee against a combined pledge.
So, in order to issue a bank guarantee, it is important for you to choose the right credit institution. However, independently search for a bank among more than 200 financial institutions too long, especially for a non-professional it can be difficult to understand all the nuances of the transaction, including the issuance of a guarantee. Contacting a brokerage company will help speed up the process.
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