In some cases, in order to conclude contracts and participate in tenders, suppliers of goods and services are required to provide a bank guarantee.
This document is issued by banks that have the appropriate permissions in accordance with Law No. 44-FZ. Only those banking organizations that are included in the register of the Ministry of Finance and meet the requirements of this law can provide guarantees for the performance government contracts.
A bank guarantee is a kind of insurance.
If the contractor (supplier of goods, services) does not fulfill the obligations assumed, the resulting costs are compensated by the bank that issued the guarantee.
Sometimes, in addition to direct losses, banks compensate for the moral damage caused (this happens only if the corresponding clause is included in the contract).
In addition to a bank guarantee, bidders can secure the fulfillment of obligations with a cash deposit. However, this method is not always convenient, since the executors of government contracts may not have the necessary free amounts, especially when it comes to millions of contracts. Unlike collateral, bank guarantees do not require payment - the contractor pays only for the service of issuing a document. As a rule, it is 3-4% of the collateral amount.
If the bank that issued the guarantee refuses to compensate for the damage, the affected organization can sue it. As a rule, after such precedents, banks are excluded from the register of the Ministry of Finance.
Regarding the registry credit and financial organizations authorized to issue bank guarantees, it is constantly changing and supplemented by new institutions. That is why, before issuing a guarantee in the selected bank, it is necessary to check the information on whether it is included in the approved list. How to do this - we will tell further.
In order for a banking organization to be included in the register of the Ministry of Finance, it must meet the requirements.
From January 1, 2018, these requirements have been expanded.
Experts note that these innovations may lead to a reduction in the number of banks in the general list of the Ministry of Finance. In addition, it is not excluded that during the transition period rating agencies slightly loosen the requirements for banking organizations.
At the moment, the register of the Ministry of Finance includes 272 banking organizations that are entitled to provide bank guarantees.
The list of banks is updated based on the information provided central bank RF. Bidders should keep a close eye on changes to the register, as banks where they previously issued guarantees may be excluded from the register.
Most of the banks in the register are the largest Russian credit institutions and financial institutions capital Cities. In addition, some regional banking organizations are included in the register.
It is important to know that the list of the Ministry of Finance is not formed by rating banking organizations. In other words, banks that occupy the first positions in the rating are not necessarily the most reliable financial institutions.
The serial number in the list depends on the registration number of the banking organization assigned to it by the Central Bank of the Russian Federation. Thus, the bank's position in the register does not reflect the rating and performance of the financial institution.
Choosing a bank to receive a bank guarantee is a crucial moment. Each bank may impose its own requirements on recipients. In addition, not all banks issue guarantees to secure public procurement obligations (that is, they have such a right, but they do not use it).
In addition, it is necessary to pay attention to the period during which banks consider applications for issuing bank guarantees. In some organizations, the consideration of applications takes quite a long time, so public procurement participants need to deal with the issue of processing the document in advance.
Modern economic reality offers many ways to avoid fulfilling your contractual obligations. Therefore, in the most important areas, such as public procurement, regulated by 44-FZ, the legislator suggests that the market use additional ways ensuring the fulfillment of obligations. Among them is a bank guarantee that ensures the fulfillment of the obligation to conclude a tender contract, the return of an advance payment in case of refusal to fulfill the contract, and similar obligations.
Bank guarantees must be valid and actually issued by banks. This means that they must be signed by authorized bank managers and must be reflected on the balance sheet. In addition, credit institutions must reserve funds that form part of the face value of the guarantee, which will be used to repay the obligation.
At the same time, banks must meet a number of special requirements established by Article 74.1 of the Tax Code. Banks that have the right to issue this type of security for public procurement obligations are included in a specialized list maintained by the Ministry of Finance. There are rules governing the accounting of guarantees. In addition to the fact that their presence can be checked according to bank statements, they must be entered in a special one.
In order to be included in the list of the Ministry of Finance, the bank must meet the requirements established by tax code. These requirements apply to banks that have the right to give guarantees for the tax liabilities of legal entities. They are also allowed to issue collateral valid in the public procurement system. The customer will refuse to accept the security if the issuing bank is not on the list. At the same time, it should be taken into account that even if the purchase is regulated by Law No. 223-FZ, as an additional requirement, the customer can establish the obligatory presence of the issuer in the list.
The list of banks is updated monthly.
It can be found on the website of the Ministry of Finance. Politics Central Bank on the control of credit institutions leads to the fact that this list has been sharply reduced over last years and now it includes less than three hundred organizations. If the CBR has identified any circumstances that prevent the bank from being on the list, for example, the amount of its own funds has fallen below the established limit, then within 5 days from the moment these circumstances are discovered, it sends information about the need to adjust the list to the Ministry of Finance. That, in turn, removes the bank from the register.
Bank customers in this case are in difficult situation, despite the fact that their provision is still valid, formally it does not meet the requirements of 44-FZ. The customer may request its replacement or cancellation of the contract. But suppliers should not seriously fear this situation. Even if the bank's license is revoked, court of Arbitration will take their side and confirm that there is no need to replace the security. An extensive arbitrage practice dedicated to this issue. In any case, the supplier must exercise due measure of responsibility and forethought when choosing his counterparty and pay attention to financial indicators bank and its reputation even before the conclusion of the contract.
The requirements that a credit institution must meet in order to be included in the list of the Ministry of Finance are quite strict. The requirements were formed on the basis of monitoring the current situation in the financial and credit sphere and are objective, properly ensuring the interests of the customer.
Banks providing a bank guarantee in accordance with 44-FZ must:
In the list of institutions issuing this type of collateral, you can find both, and the regional Koshelev-Bank. It is not necessarily in the top hundred of the rating; in practice, there are small but financially stable banks on the list.
A credit institution may fall out of the list if it is in a state close to bankruptcy. According to the Ministry of Finance, the register of banks for issuing bank guarantees makes it possible to control the financial position of credit institutions. The information in the registry is updated monthly. It should be taken into account that the presence of an organization in the list does not automatically mean that it provides services for issuing tender guarantees. There are banks that consider this line of business as their core business, and there are credit institutions that issue collateral on a one-time basis and only to regular customers. Of course, for regular customers with stable turnovers on current accounts, collateral will be provided faster and with a lower commission than legal entity who applied for the first time to a particular credit institution.
When working with the registry and choosing a counterparty, you need to pay attention to the amount of the commission for providing this service. It depends on the specialization in that particular topic, the duration of the collateral, the amount, the conditions for direct debiting and the presence of additional collateral provided by the principals to the guarantor.
Mirrors of the list of the Ministry of Finance, in case of its unavailability due to any maintenance work on the server of the ministry, can be found on the pages of loan brokers working in the field of public procurement. The advantage of such additional lists is that brokers will mark banks that have left the list, and if clients have already started working with them to receive a guarantee, they will be able to stop it in a timely manner and choose another bank.
The interests of the customer in the field of public procurement are provided not only by the list of banks, but also by the register of collateral issued by them. The Federal Treasury is responsible for maintaining the list of guarantees.
It also issues e-certificates to issuers of guarantees, which allow entering information into the registry. Only guarantees issued in accordance with Law No. 44-FZ fall into it.
If it is issued based on the requirements of laws No. 223-FZ (purchases by companies with state participation). 214-FZ ( share building) and other similar ones, the need to take it into account in the register has not been established. And this means that the authenticity of the document can only be verified by sending a request to the bank or by checking the change in turnover in the reporting for the corresponding line. There are cases of so-called "gray" guarantees and the risk of rejection of collateral for this reason should be avoided.
After the bank guarantee is issued, executed in the form of a paper electronic document, its issuer is obliged to enter information about it into the register no later than the next business day after issuance. Information is provided in electronic form and signed with an enhanced electronic signature. Based on the information entered, an extract is formed, which is provided to the beneficiary. Likewise in as soon as possible is entered in the register and information on any changes to the terms of the guarantee. All bank guarantees, issuing banks and government contracts are also recorded in the government procurement data system. This information is available only to direct participants in the processes in this area.
Since some of the government contracts are in the area of state secrets, information about them is classified. Information related to the list of provided bank guarantees to secure obligations under such contracts is also classified in the same way.
An extract may be required not only to provide it to the beneficiary along with a letter of guarantee. It is required to issue it at the request of any of the parties to the warranty obligation, as well as at the request of certain government agencies. If the information is in the classified part of the list, then the request and response are marked “secret” and it is issued in a special manner in compliance with all requirements for the protection of state secrets. Otherwise, it will be provided at the request of the applicant and will confirm the presence of his security in the list.
It should be borne in mind that the absence of a bank in the list and the absence of a guarantee in the register may lead to the customer's refusal to accept the security. In the worst case, the supplier here may be on the list of unscrupulous, at best, he will have to draw up a new letter of guarantee. You should avoid these situations and draw up documents in accordance with the requirements of the law, cooperating only with credit institutions whose stability is confirmed by the Ministry of Finance.
From 07/01/18, a replacement is required to participate in auctions under 44-FZ electronic signature to qualified!
In this article, we will consider the following questions:
The Ministry of Finance regularly updates the list of banks that, from June 1, are entitled to issue guarantees to secure an application or fulfill a contract. AT current list from 22.10.2018 already 200 financial institutions.
You can view updated lists of banks that are entitled to issue bank guarantees to secure applications and fulfill contracts and meet the requirements established by parts 1 and 1.1 of Article 45 of Law N 44-FZ on the website of the Ministry of Finance ( https://www.minfin.ru/ru/perfomance/contracts/list_banks/#).
Updated data as of 11/01/2018.
From July 1, 2018 will begin to work, according to which, during an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an electronic auction, funds intended to secure bids will have to be paid by procurement participants to special accounts opened by them in banks , the list of which will be established by the Government of the Russian Federation.
In other words, the procedure for placing bid security in electronic auction to the accounts of electronic trading platforms - is abolished.
Initially, it was assumed that each supplier would have only one special account. However, this caused a lot of objections from the public procurement market participants and the Federal Antimonopoly Service, who fear the suspension of purchases due to the need to open hundreds of thousands of accounts. In turn, electronic trading platforms argue that the “one supplier, one account” requirement can deprive them of customers whose banks the platforms do not work with. Only two ETPs supported one special account - the Agency for State Order of Tatarstan and Sberbank-AST, referring to the difficulty in finding a person responsible for performing operations to secure the application if the supplier has several accounts, and also to the fact that checking several accounts is technically impracticable - to blocking accounts for one hour.
On April 27, 2018, the Ministry of Finance posted on its official website, indicating the following points:
At the end of May 2018, the Government of the Russian Federation issued Decree N 626 dated 05/30/2018, which includes the following points:
Thus, the above decision allows the use of existing bank accounts purchasing participants. To do this, it is necessary to conclude an additional agreement with the bank, in accordance with the requirements of the resolution.
Until January 1, 2019 suppliers accredited at one of the ETPs, newly selected according to the requirements of 44-FZ, will be able to become the owner of a special account. After the specified date, the procurement participant must be in single register procurement participants, which will be maintained on the UIS.
Conclusion - to start work and the process of opening a special account, we expect the following three events:
The main goal pursued by the Government of the Russian Federation by introducing the use of invoices is to increase the "transparency" of public procurement. However, this mechanism deprives electronic platforms of the opportunity to receive income from the placement of funds of participants in bank accounts.
In order to "compensate" the loss of income of electronic trading platforms, the Government of the Russian Federation signed Decree No. 564 dated May 10, 2018 "On the collection of fees by operators of electronic platforms, operators of specialized electronic platforms when conducting an electronic procedure, a closed electronic procedure and establishing it limit sizes". According to this document:
Charging the winner will be done in two ways:
