Guarantee 223 fz. Signs of a fake bank guarantee

Only banks can issue bank guarantees for bidding under Law No. 223-FZ.

List of banks for bank guarantees under 223-FZ

The list of banks that can issue bank guarantees under 223 Federal Law is not regulated by law, unlike 44-FZ, under which only banks included in the list of the Ministry of Finance can issue guarantees. However, government customers have the right to present requirements to banks in the auction documentation, whose guarantees they will accept as security for the execution of the contract. Unfortunately, sometimes customers demand that the bank be in the top 10 list of the Ministry of Finance or the top 50-100 in the general rating of banks or even the “top 10 elite banks.” It is important to note that the list is compiled not by bank rating, but by registration number credit organization. That is, the first in the lists of the Ministry of Finance or the general rating are banks with the first registration numbers.

Register of guarantees under 223-FZ

Federal Law No. 223-FZ does not require bidders to include a bank guarantee in the unified federal register. Therefore, any customer requirements for inclusion of guarantees in the register under 223-FZ are unfounded. In practice, such requirements are included in auction documentation by mistake. It is necessary to send a request to the customer, and this requirement will be deleted.

The method of ensuring the execution of the contract under 223-FZ is chosen by the participant (supplier) at its own discretion. If the security is provided by a bank guarantee, then the basis for refusing to accept the guarantee under 223-FZ cannot be its absence in the register, since such a provision is not spelled out in Federal Law 223.

Bank guarantees for state unitary enterprises and municipal unitary enterprises

Until the end of 2016, all state unitary enterprises and municipal unitary enterprises organize purchases in accordance with 223-FZ. However, from January 1, 2017, all public procurement state and municipal unitary enterprises must be organized in accordance with the requirements Federal Law No. 44-FZ. The corresponding bill “On amendments to the Federal Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” and part 2 of Article 1 of the Federal Law “On the procurement of goods, works, services” certain types legal entities", developed by the Ministry of Economic Development of Russia, at a meeting of the Government of the Russian Federation.

This means that all bank guarantees issued in favor of state and municipal unitary enterprises must comply with 44-FZ from January 1, 2017. Accordingly, banks issuing bank guarantees in favor of state unitary enterprises and municipal unitary enterprises must be in the register of the Ministry of Finance and fully comply with Article 45 of Law No. 44.

Verified banks for guarantees 223-FZ

According to 223-FZ, as well as with 44-FZ, it is better to issue bank guarantees from reliable banks with streamlined business processes and extensive practice in performing such operations, for example, in

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Deputy State Duma Shaikhutdinov R.G. it was proposed to amend the Federal Law of July 18, 2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities" and the Federal Law of 04/05/2013 No. 44-FZ "On the contract system in the field of procurement of goods, works , services to meet state and municipal needs" in terms of requirements for ensuring the fulfillment of obligations by procurement participants.

In particular from explanatory note It follows from the bill that currently customers, within the framework of the current norms of the Federal Law of July 18, 2011 No. 223-FZ “On the procurement of goods, works, services by certain types of legal entities,” have the right to independently regulate the issue in the procurement regulations and procurement documentation securing applications, fulfilling obligations under the contract, including customers have the right to make any demands on (size, form, procedure for provision, validity period, etc.) and the banks issuing them. In practice, this leads to customers demanding that bank guarantees be 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 by the Government Russian Federation Decree No. 440 dated April 12, 2018 “On requirements for banks that have the right to issue bank guarantees to secure applications and execute contracts” was issued, which comes into force on June 1, 2018. The said 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 its own funds (capital) in the amount of at least 300 million rubles, calculated according to the methodology Central Bank Russian Federation, as of the last reporting date;

bank availability credit rating not lower than the level “ВВ-(лШ)” 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 level of “giVV-” on 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 of “B-(RU)” and “GIV-”, respectively, can carry out issuance of bank guarantees.

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

potentially corresponding to 49 to 102 banks. However, in the established market of bank guarantees, 576 credit institutions are currently operating 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 no requirements have been established either for 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 procurement of goods, works, services and basic requirements for such procurement carried out by legal entities with state participation(state corporations, state companies, public companies, subjects natural monopolies, organizations carrying out regulated activities, budgetary institutions, state and municipal unitary enterprises). This law does not apply to legal entities, in authorized capital of which the share of participation of the Russian Federation, a constituent entity of the Russian Federation, municipality in the aggregate does not exceed fifty percent for their subsidiary business companies and the latter's subsidiary business companies (Part 2.1 of Article 1).

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

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

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

formulated in part 1 of article 1: efficient use funds, preventing corruption and other abuses;

does not comply with the procurement principle formulated in

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

At the same time, the extension of requirements for banks issuing bank guarantees as security 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 established customers, which means that regulation of such requirements and restrictions is required,

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

Also, taking into account that in regulatory legal acts The Government of the Russian Federation, as a rule, establishes minimum acceptable values ​​of indicators, and in order to prevent customers from establishing unreasonably inflated requirements, the bill proposes to include in both Federal Law No. 223-FZ and Federal Law No. 44-FZ a prohibition for customers to establish 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 by small and medium-sized businesses for the purposes of securing applications and executing contracts.

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

Unification of requirements for bank guarantees will increase their accessibility for small and medium-sized businesses and will 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 services market.

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

The most reliable method to ensure the implementation of a government contract is the use of bank guarantees. Being a kind of obligation, and not a system of mutual settlements between the client and the financial institution, guarantees act as a tool. Its 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 most loyal to participants involved in government procurement. It has general order to carry out procurement activities. At the same time, Federal Law No. 44 tightens 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; Federal Law No. 44 stipulates the rules for them.

Let's look at the 3 most basic differences between these two bills when receiving bank guarantees:

First difference

According to Federal Law No. 44, everyone must be included in a single register, abbreviated as ERBG. This is the main requirement for fulfillment, since bank guarantees not included in unified system information will not be accepted by the customer as guarantees ensuring the fulfillment of the contract. For the introduction of bank guarantees in the ERBG, obligations are assigned to the Federal Treasury of the Russian Federation. The operating rules, based on 223-FZ, do not impose mandatory inclusion in the register of bank guarantees on participants in public procurement.

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 legislative standards and are authorized to regulate the sphere financial relations, according to these government 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 conduct such activities;
• Experience in a similar field of activity must be at least 5 years.

All banks authorized to issue bank guarantees are awarded an identification code; this procedure takes place in accordance with Order No. 127 of the Ministry of Finance of the Russian Federation dated December 18, 2013.

Third difference

Referring to Article 223-FZ, a bank engaged in issuing bank guarantees does not necessarily have to be included in the general register of banks of the Russian Ministry of Finance. But, despite 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 according to the Ministry of Finance list.

If the cost of the contract exceeds 50,000,000 rubles, according to the article, the customer simply needs to demand from the bank to provide it with approximately 10-30% of the maximum value provided. If Article 223-FZ is applied, justification for the contract price is not required; in principle, there is no need to establish it.

Bank guarantees under 223-FZ and their varieties

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

1. A bank guarantee is issued to a supplier who has expressed a desire to take part in a competition or auction. It provides the participant's application.
2. Bank guarantee for the return of the advance.
3. A bank guarantee ensures the fulfillment of a government procurement contract.

Requirements of 223-FZ for bank guarantees

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

• are irrevocable;
• have a certain validity period (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 must stipulate the obligations of each of the parties involved in the implementation of the actions for which the bank guarantee is provided.

Reasons for obtaining guarantees

Many customers set requirements for suppliers to have bank guarantees in accordance with 223-FZ, as one of the main conditions for participation in tenders for government procurement. If such requirements are not set, obtaining bank guarantees would still be an appropriate and justified action.

This is due to the following factors:

• Providing guarantees is much cheaper than applying for a loan on a commercial basis. However, it will not hurt if you need to take out a loan (getting 2 loans is much more difficult than getting a bank guarantee and getting a loan at the same time);
• the bank may grant a deferred payment, while the price will increase bank guarantee won't happen;
• Having bank guarantees, you can use such a service as advance payments;
• the presence of guarantees reduces the risks of concluded transactions to a minimum level.

Cost and size of guarantees

The size of bank guarantees for government procurement participants is determined exclusively in individually, their calculation is based on the final amount of the contract. Naturally, when determining the size of a bank guarantee, banks take independent decision, but in accordance with the law, the upper limit is considered to be within 10% of overall indicator bank capital. The main factors influencing the cost of guarantees may be the period for which it is provided, the availability, as well as the absence, of the necessary security for it. To reduce its cost, you can open a bank account, where a bank guarantee is issued, or provide property owned by the company as collateral. Promissory notes and deposits can serve as collateral.

A bank guarantee is a method of fulfilling obligations to fulfill the terms of a contract. In case of improper performance or non-compliance by the supplier with the terms of the contract financial risks is taken over by the guarantor bank.

Let's take a closer look at the bank guarantee within the framework of the Federal Law of July 18, 2011 No. 223-FZ “On the procurement of goods, works, services by certain types of legal entities” (hereinafter referred to as the procurement law, 223-FZ).

Law 223-FZ is more loyal to the customer and contractor, in contrast to the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as the law on contract system, 44-FZ), since it regulates only the basic conditions of procurement, leaving the customer to independently determine specific parameters in accordance with its procurement regulations. There are three main differences in the conditions for obtaining a bank guarantee under 223-FZ and 44-FZ:

• According to 44-FZ, a bank guarantee must be included in the Unified Register of Bank Guarantees (URBG). Without a bank guarantee in the register, the customer has no right to accept such a bank guarantee as security for the contract. 223-FZ allows you to provide a bank guarantee that is not included in the register.
• In accordance with 44-FZ, a bank guarantee cannot be obtained from any bank. The guarantor bank must, firstly, be included in the official list of banks of the Ministry of Finance of the Russian Federation that comply with legal requirements. Secondly, the guarantor bank must have own funds in the amount of at least 1 billion rubles, a license for the relevant activity and a period of activity of at least 5 years. 223-FZ does not put forward requirements for the guarantor bank to be in the register of banks of the Ministry of Finance. True, the customers themselves often demand (which is quite logical) that the bank from which the bank guarantee will be received be on this list (top 10, top 50).
• 44-FZ obliges the customer, if the contract value is above 50 million rubles, to require contract performance security in the amount of 10 to 30% of the initial (maximum) contract price. According to 223-FZ, the customer is not required to justify the NMC.

In the scope of 223-FZ, bank guarantees are divided into three types:

• Bank guarantee to secure an application for participation in the procurement- as confirmation of the seriousness of the supplier’s intentions, and also as a guarantee that the supplier will not withdraw the application ahead of schedule, will not change the price, etc.
• Bank guarantee for advance repayment. The guarantor bank undertakes to pay the customer cash, issued to the contractor as an advance, in the event of the contractor’s refusal to fulfill its obligations under the contract after receiving the advance funds.
• Bank guarantee to ensure the execution of the contract. The customer receives a certain amount from the guarantor bank if the contractor has not fulfilled or improperly fulfilled his obligations under the contract.

Despite the fact that the requirements for a bank guarantee under 223-FZ are quite soft, there are still certain mandatory items:

• a bank guarantee under 223-FZ must be irrevocable;
• the bank guarantee under 223-FZ must have a validity period;
• the customer should indicate in the procurement regulations the period within which he must approve or reject the bank guarantee;
• the bank guarantee must clearly state the amounts to be paid by the guarantor bank to the customer in the event of failure by the contractor to fulfill the terms of the contract;
• The bank guarantee must specify all the obligations of the procurement participant.

Even if the customer does not require mandatory bank guarantee, it makes sense to secure your obligations in this way. There are a number of reasons for this:

• Obtaining a bank guarantee will be cheaper than taking out a loan for the same amount. Plus, it is possible to obtain both a loan and a bank guarantee, while it is impossible to obtain two loans;
• A fairly large number of banks provide deferred payment without increasing the cost of the bank guarantee itself;
• Having received a bank guarantee, you can safely manage advance payments without fear of consequences;
• With a bank guarantee, transaction risks are minimized.

The amount of the bank guarantee is determined for each company individually and depends on the total amount of the contract. Despite the fact that the guarantor bank determines the size of the bank guarantee independently, its upper limit by law cannot exceed 10% of the bank’s capital.

The cost of a bank guarantee directly depends on the size of the bank’s commission (on average, 2-10% of the volume of the guarantee amount). They also determine the presence or absence of its security, its validity period, and its subject. If you take out a pledge on the organization’s property or open an account with a guarantor bank, the cost of the bank guarantee can be reduced. The collateral can be, for example, a deposit.

Based on the foregoing, we can conclude that a bank guarantee is a reliable way to secure an application, return an advance or fulfill a contract, acceptable for both the contractor and the customer.

Evgeny Smirnov

# Banks for business

Conditions for obtaining a guarantee

Most often, a bank guarantee is needed when it comes to government procurement, where its availability is prerequisite.

Article navigation

• What is and why do you need a bank guarantee?
• Differences between bank guarantees under 223-FZ and 44-FZ
• Presence in one federal register bank guarantees (ERBG)
• Contract amounts
• Requirements for banks
• How to check the warranty
• Validity period of the bank guarantee
• Warranty cost

In this material we will talk in detail about bank guarantees under 223-FZ, consider the most significant nuances and give useful tips, which will help you simplify the obtaining procedure.

What is and why do you need a bank guarantee?

A bank guarantee is necessary to confirm the fulfillment of obligations by one company to another. The bank issues a document according to which it guarantees the fulfillment financial obligations. Speaking in simple words, the bank promises to fulfill obligations for a third party regardless of other factors. For a company that is given a guarantee, this means there is no risk. In any case, she will receive her money, or compensation for receiving low-quality services and goods.

In addition to private transactions between companies, bank guarantees are required:

• when working with government procurement;
• holding competitions and auctions;
• a number of other areas, for example, for customs or the Federal Tax Service.

Most often, banks are approached when it comes to government procurement, in which case the provision of guarantees will be a prerequisite. There are three types of guarantees under 223-FZ:

1. To fulfill government contracts. In this case, the bank will pay the stated amount of security if the contractor does not fulfill his obligations or fulfills them to a limited extent and with inadequate quality. This is a kind of insurance against unreliable performers.
2. Securing the application of a contractor who plans to take part in a competition or auction. IN in this case the bank guarantee confirms his intentions and guarantees that he will sign the contract.
3. To return the advance payment. It is necessary when the contractor refuses to fulfill his obligations, but he has already received an advance. This is to protect the customer or buyer from obvious scammers.

Bank guarantees are issued independently or with the participation of intermediaries (brokers). There are four parties to the agreement:

• guarantor – the bank itself that issues the guarantee;
• beneficiary – the party who receives the guarantee;
• principal – the party for whom the bank issues a guarantee;
• The principal's bank applies for a bank guarantee.

A sample guarantee can be viewed and downloaded here.

Differences between bank guarantees under 223-FZ and 44-FZ

To put it quite simply, 223-FZ is more loyal to the customer and gives him freedom of action. The customer can install it himself a whole series requirements. For executing companies, obtaining a bank guarantee is usually much simpler. However, this depends only on the customer and his requirements. Let's talk separately about the most key differences.

Presence in the Unified Federal Register of Bank Guarantees (ERBG)

For guarantees under 223-FZ, this is not mandatory. For documents under 44-FZ, this is a mandatory condition; often customers refuse contractors if they do not see a bank guarantee in the register. But you should pay attention to this point in advance; the beneficiary can write this item down separately.

Contract amounts

If the contract amount exceeds fifty million rubles, then according to 44-FZ it is necessary to provide security of up to 30% of the contract amount. 223-FZ does not indicate the amount of security in any way; the customer can set it independently. This is quite important for companies that cannot withdraw significant money from circulation during the period of holding competitions or selecting a government contractor.

Requirements for banks

According to 44-FZ, there is a register of banks, which have strict requirements and conditions. Only these banks can issue guarantees. This helps weed out unreliable financial institutions. There are no restrictions under 223-FZ, however, the customer of goods or services has the right to independently compile a list of banks.

Basic requirements for a bank guarantee under 223-FZ:

• must be irrevocable;
• the validity period must be specified in the text;
• all amounts of payments to the beneficiary under various circumstances of breach of contract must be indicated in detail;
• the customer is obliged to approve or reject the bank guarantee within three days;
• it must specify all the rights of the beneficiary and the obligations of the principal in order to avoid controversial situations.

How to check the warranty

Since, according to 233-FZ, inclusion in the register is not a mandatory condition, it is not always possible to check a bank guarantee in this way. In principle, as a customer, you can set a similar condition. For customers of goods and services, there are a number of tips that will help check the warranty if it is not in the ERBG and you have not specified this requirement:

• The documents must be on bank letterhead and must contain all the items listed in 223-FZ.
• Validity periods must be indicated.
• It is necessary to check the license of the bank that issued the guarantee, and also find out its current status (whether there is a bankruptcy procedure, etc.). Current information can be found on the website of the Central Bank of the Russian Federation.
• If you have any questions or suspicions, contact bank representatives.

Validity period of the bank guarantee

The validity period is a mandatory condition that is specified in the guarantee document itself. If it is not specified, then such an agreement will be invalid. The validity period can be set individually; the first day is usually counted from the moment the guarantee is issued. There are no restrictions regarding terms, the only exceptions are government contracts, where:

• The established framework should not be less than the warranty period for services or goods.
• The warranty period must be at least one month longer than the duration of the contract.

The deadline must be indicated; options like “Until all obligations under the contract are fulfilled” are unacceptable, since they will definitely not be considered by the court, and banks may not fulfill their obligations under such guarantees. According to the Civil Code of the Russian Federation, certain events that must inevitably occur can be indicated as dates. But it is still better and more correct to indicate specific dates.

If the term of the bank guarantee is violated, then by agreement of all parties it can be extended. Again, it is best to foresee this possibility in advance and write it down in documents. A number of contracts may have very vague time frames, so if you are not 100% sure of meeting the deadlines, it is better to immediately ensure the possibility of extending them.

You can obtain a bank guarantee either independently or through intermediaries. The second option will be a little simpler, but more expensive. In any option, you will have to collect a package of documents, the contents of which must be clarified with the bank. Requirements may differ for different contracts, but to obtain a guarantee there are a number of necessary conditions:

• your company has been operating for at least one year;
• I have a current account in a Russian bank;
• there are no legal disputes in which the company acts as a defendant;
• no tax debts;
• there should be a profit in the last quarter.

These are not legal requirements - these are the banks’ conditions. Without compliance with them, respectable banks will not even consider your application. The processing and receipt period usually ranges from 3 to 10 days. In addition, if you use the system electronic document management, you can issue a bank guarantee without visiting a financial institution.