The validity period of the bank guarantee is 223 FZ. Additional subtleties and important points

A bank guarantee under Federal Law 223 will allow you to fulfill your obligations under the contract, even if the supplier does not comply with the terms of the contract. All financial risks in this case, the commercial credit institution takes over.

Basic provisions of the federal law

The law was adopted on July 18, 2011. It describes the procurement regulations for various categories of goods and services. The text of the document describes the procedure for placing an order for work for a specific company, including the requirements for it.

According to Article 2 of this federal law, when purchasing, customers need to focus on other legal acts from civil code and the Constitution of the Russian Federation. Regulatory documents deserve attention, in particular, the approved procurement regulations, which describe the procedure for conducting the event.

IN bank guarantee According to Federal Law 223, the following information is indicated:

• procurement requirements;
• regulations for preparing and conducting the procedure;
• norms for drawing up, signing, and fulfilling contracts;
• generally accepted methods of purchasing goods and services;
• methods of contract enforcement.

The contractor who wins the auction is not required to issue a bank guarantee for the execution of the contract, since this is not stipulated by federal law. However, according to related normative act 94-FZ this condition may be included in the text of the tender agreement.

Conditions of a bank guarantee under Federal Law 223

If the customer has made a requirement for mandatory security, the winning bidder will have to provide one of the following confirmation options:

• irrevocable obligations that are issued by a bank or other commercial credit institution to the executor;
• cash collateral or deposit in one of the banks - the size of the asset must cover the collateral under the contract.

The amount of obligations is established in the accompanying documentation (in electronic form), describing the main provisions of the competition for the purchase of goods. In this case, the competitor himself chooses the most convenient option for him to confirm the fulfillment of obligations under the contract.

The participant in the tender or auction is advised to carefully read the tender documentation and pay close attention to the section with the conditions for securing the application. To reduce the time for drawing up a contract, it is better to take care of receiving required document in advance.

The procurement participant is free to choose any method of securing the application and execution of the contract. The most commonly used are transferring funds to an account and providing a bank guarantee under 223-FZ. The second method is used when the company does not have free money. Next, we will consider the requirements for a bank guarantee under 223-FZ.

In this article:

Bank guarantee under 223-FZ: what is it?

The bank guarantee under 223-FZ is discussed in Article 3 of the Procurement Law certain types legal entities The customer has the right to specify in his regulations the conditions of the security, the procedure, terms and cases of its return, as well as methods of provision. Among them, the customer can indicate a bank guarantee.

There is no separate article on a bank guarantee in 223-FZ, as well as a definition of this term. It is contained in Art. 368 Civil Code of the Russian Federation. This is a document according to which the guarantor (in our case it is a bank) undertakes to pay the beneficiary (customer) a certain amount of money upon the occurrence or non-occurrence of the agreed conditions.

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Types of bank guarantee under 223-FZ

This document can be of three types:

• to secure an application;
• to return the advance;
• to ensure the execution of the contract.

In the first case, the bank undertakes to pay the customer money if the participant evaded concluding the contract, becoming the winner of the procedure, or did not provide security for the execution of the contract. An expert will tell you what changed in July 2018, what there are already mistakes in and how to work correctly

The second type implies that the credit institution will return to the customer the advance paid to the supplier if the latter refuses to fulfill its obligations after receiving the advance payment. Finally, a bank guarantee for the performance of a contract under 223-FZ provides for the return of funds if the contractor has not fulfilled or improperly fulfilled his obligations under the contract.

In small print under the asterisk: the terms of the bank guarantee that you need to read in advance

A bank guarantee is your insurance. If the supplier breaks the contract, the bank will reimburse everything, otherwise what is the point of the guarantee mechanism. The practice of working with guarantees has already been established, the texts of the guarantees are similar, the conditions are standard, no one pays much attention to them anymore. And in vain, because seemingly standard paper may contain conditions that make it useless. Not only will you not be able to get the money, but you will also find yourself embroiled in a long and fruitless trial. And this additional costs and late purchases.

Conditions of a bank guarantee under 223-FZ

The requirements for bank guarantees under 223-FZ are not contained in the Procurement Law for certain types of legal entities. Customers are advised to rely on the provisions of November 8, 2013 No. 1005 ">Resolution of the Government of the Russian Federation dated November 8, 2013 No. 1005. It says that the document must:

• be irrevocable;
• have a validity period;
• contain a list of the supplier’s obligations and the amount of return to the customer.

Other requirements for bank guarantees and documentation for a specific procedure. For example, the largest customer, Transneft Siberia, accepts guarantees only from banks on its list. They have certain requirements:

• work for three years;
• availability of a license;
• participation in the deposit insurance system (for banks providing services to individuals);
• presence of a satisfactory level of creditworthiness;
• the presence of a limit established by Transneft PJSC for transactions with the bank;
• presence of long-term credit rating one of international agencies(Fitch, Moody's, S&P);
• the average amount of equity (capital) over the last 3 months is not less than 40 billion rubles;
• the bank’s use of standard forms of bank guarantees approved by Transneft PJSC;
• Verification of bank guarantees.

Hello, dear colleague! In today's article we'll talk on verification of the authenticity of bank guarantees under 44-FZ and 223-FZ. This financial instrument is actively used by procurement participants, both to secure applications and to ensure the execution of contracts. And since bank guarantees (abbreviated as BG) are very popular among suppliers, they are often counterfeited. In turn, a fake guarantee is a risk not only for the supplier, but also for the Customer, so in this article we will look in detail at how to check the BG yourself and not fall for the scammers.

1. Criteria that this bank guarantee must meet

Criterion No. 1

The bank that issued the bank guarantee, in mandatory must be included in the list of banks located on the website of the Ministry of Finance of Russia at the address: //www.minfin.ru/ru/perfomance/tax_relations/policy/bankwarranty/. This list is updated regularly. As of May 31, 2017, there were 279 banks on this list.

Note: Federal Law No. 223-FZ does not establish mandatory requirements for banks issuing guarantees. Such requirements can be established by the Customer himself in his Procurement Regulations. In general, it is worth noting that the requirements for guarantees issued under 223-FZ are more flexible than for guarantees under 44-FZ.

Criterion No. 2

Information about the BG must be contained in the register of bank guarantees on the official website of the United information system in the field of procurement - www.zakupki.gov.ru. Moreover, information about the issued financial statement must be included by the bank in this register no later than one working day following the date of its issue (Part 11, Article 45 of 44-FZ).

Note: 223-FZ does not require that the guarantee must be included in the BG register.

Criterion No. 3

The guarantee must be irrevocable, i.e. the bank does not have the right to revoke such a BG under any set of circumstances. Thus, the guarantor undertakes to fulfill all its obligations.

Criterion No. 4

Criterion No. 5

The guarantee should not include 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.

Criterion No. 6

The guarantee must be printed on letterhead bank and must contain the details of such bank and license number.

Criterion No. 7

BG on a large sum issued under surety or collateral.

2. Signs of a fake bank guarantee

Sign No. 1 - Minimum amount of documents

Issuing a BG based on only a few documents (company details and a link to a contract (purchase)) or without any at all is a clear sign of fraud. The Central Bank of the Russian Federation provides instructions according to which the bank’s credit department must check the full set of documents. As a rule, such a set of documents includes:

• constituent documents;
• financial statements;
• tax returns;
• application with reference to a procurement or contract;
• decoding information on key accounting items.

Important point: Without providing the original documents, you will never be given a real BG. Copies of documents are required only for making a decision on the issuance and registration of a BG, but not for its issuance.

Sign No. 2 - Short terms for issuing BG

Quite often you come across advertisements that talk about issuing BG in 1-3 hours. This is also a clear sign of fraud, because document verification takes a certain amount of time from 3 to 7 days.

Sign No. 3 - The commission for issuing BG is significantly lower than the market average

Before you apply for a bank account, you need to look at the tariffs of several banks. Usually the difference between the tariffs will not be very large. If you are offered to issue a BG at a price significantly lower than the market average, then this is a clear sign of a fake BG.

Sign No. 4 - Transfer of funds for the issued BG to the account of a third party

The amount of remuneration for the issued BG must be transferred to the account of the bank that issued it. The purpose of the payment must indicate “Payment of remuneration for the provision of a bank guarantee...”. If you are offered to transfer money to the account of another organization, then this is a clear deception. Under no circumstances should you do this.

Also, be sure to pay attention to the details specified in the documents, they must be identical everywhere. All signatures must be deciphered, and seals must be clear and readable.

One of the most common schemes is to use the names of organizations similar to the names of large banks.

3. How does a fake bank guarantee threaten a supplier?

The supplier who provides the Customer with a BG may or may not know that the warranty is fake. However, in both cases he exposes himself to great risk:

Firstly, The customer may require the supplier to replace the warranty within 5-10 days.

Secondly, The customer may refuse to enter into a contract or unilaterally terminate the contract with the supplier at any stage of its execution if it turns out that the guarantee is false.

Thirdly, a criminal case may be initiated against the supplier under Article 159 of the Criminal Code of the Russian Federation “Fraud”.

Fourth, information about the supplier may be entered into the register of unscrupulous suppliers. Thus, he will be deprived of the opportunity to take part in auctions for two years.

4. Methods for checking a bank guarantee

Checking the guarantee on the official website of the EIS in the register of bank guarantees

This method is perfect for checking the BG obtained under 44-FZ. To do this, you need to go to the RBG on the EIS website and enter the register entry number, or the name of the bank, the name of the supplier, the procurement notice number, the contract registry number or the procurement identification code (IKZ) in the search bar. And then click on the icon with a magnifying glass located on the right side of the search bar.

If you find a BG in the registry with the status “Posted”, then there is nothing to worry about.

A detailed algorithm for checking BG in the register of bank guarantees is described in.

Note: There is both an open registry of BGs and a closed one, which includes information about BGs provided as security for applications and execution of contracts, if such applications and (or) contracts contain information constituting a state secret. Accordingly, information about such BGs in open access you won't find it. To verify such guarantees, a written request must be made to the Treasury.

The following methods are ideal for checking a bank guarantee under 223-FZ:

Official request to the guarantor bank

You can send an official written request to the head office of the guarantor bank in order to confirm the fact of issuance of the BG by number and date of issue. The form of such a request is not regulated in any way, therefore it can be prepared by you in any form. If you contact the bank by phone, they will most likely refuse to provide you with such information, citing its confidentiality.

Official request to the Central Bank of the Russian Federation

You can also send an official written request to the Central Bank of the Russian Federation in order to confirm the fact of issuing a bank statement by a specific bank.

Personal visit to the territorial bank branch

As a rule, many banks have branches in different cities. Therefore, if there is a branch of the bank that issued the guarantee in your city, then you can visit it in person.

Checking a bank guarantee online through the Central Bank of the Russian Federation

Here you can find out:

• is there such a bank at all;
• does such a bank have the right to issue banknotes;
• did this bank issue BG;
• Are there any violations by this bank of the regulations of the Central Bank of the Russian Federation for the Bank of Russia?

Suppose the bank you are looking for is in the directory, left-click on the name of this bank to view full information.

On the page that opens with information about the bank, you need to find the “Data” section turnover sheet according to accounts accounting", choose current year and the last reporting period.

Then in the statement that opens you need to find account number 91315. It is most convenient in in this case use the keyboard shortcut (Ctrl+F).

This line displays information about financial transactions under bank guarantees. If you see zeros in the line, then the bank did not issue any bank guarantees at all. If the line reflects an amount less than the BG issued to you, then we can assume that such a BG is counterfeit or off-balance sheet. Perhaps the bank is not even aware of such a guarantee.

An amount exceeding the size of your BG does not mean that the guarantee issued to you is real. However, this indicates that this bank really gives out BG.

This method is more suitable for calculating “clumsy” fakes of BGs.

Note: The Central Bank of the Russian Federation for banks operating in the Russian Federation has established a limit on the size of the BG issued to one principal (i.e., procurement participant (supplier)). The size of the BG should not exceed 25% of the bank's capital.

How to check that the amount of your guarantee does not exceed 25% of the bank's capital? On the page with information about the bank, find the section “Calculation of equity (capital)”, this is form 123. Select the year and last reporting period.

In line No. 000 “ Own funds(capital)" you will find information about the amount of the bank's capital as of the reporting date.

And if the size of your guarantee is more than 25% of the bank’s capital, then this is a clear violation that may threaten the bank with revocation of its license. If the bank is ready to issue you such a guarantee, then most likely it is not going to reflect it on its balance sheet. And in the event of claims from the Customer, it will deny the fact of issuing such a BG. So keep this in mind.

5. Frequently asked questions

Question No. 1— Should the Customer check the BG provided by the participant?

Answer: 44-FZ does not contain a direct obligation for the Customer to verify the authenticity of the bank guarantee. However, the Customer must accept the participant’s BG, or refuse to accept such a guarantee, on the grounds specified in Part 6 of Article 45 of 44-FZ. Thus, the Customer must check the BG for compliance with its conditions contained in the notice (procurement documentation, draft contract), part 2, 3 of Art. 45 44-FZ, as well as for its presence in the BG register.

Question No. 2— What to do if the bank that issued the bank guarantee has its license revoked?

Answer: This does not mean that the issued BG is automatically cancelled. However, for the Customer such a guarantee has no value, because if necessary, the Customer will not be able to use it.

Question #3— Which banks issue low-quality bank guarantees?

Answer: It is quite easy to identify banks that issue low-quality guarantees. To do this you need:

1. Go to home page official website of the EIS (www.zakupki.gov.ru), in the left vertical menu select the “Procurement” section and in the drop-down menu select the “Register of Bank Guarantees” item.

1. Then in the register that opens, click on the hyperlink “Refine search parameters and select “Bank guarantee status” - Refused acceptance. Additionally, you can set the date of placement of the BG in the register 2-3 months later than the day of inspection. Next, click on the “Refine Results” button.

1. Next, in the issuance results, we look at the banks whose guarantees were not accepted by the Customers.

1. You can also follow the “Documents” link and see for what reason this or that guarantee was not accepted.

If guarantees from the bank where you plan to obtain a BG are often rejected, then you should not order a guarantee from such a bank.

Question #4— Can a participant who has provided a fake BG avoid entering information about him into the RNP?

Answer: Yes, entering information into the RNP can be avoided if the participant manages to prove his innocence. If fake guarantee was issued to you by a broker or bank, then you need to file a corresponding statement with the police, and provide a copy of such a statement at the FAS meeting.

Question #5— How to check a broker providing services for issuing BG?

Answer: First, you need to check whether there is a connection between the broker and the bank agency agreement. Secondly, see if this broker has a website and contact information on it. Thirdly, you can call the bank and find out whether it works with such a broker or not. Fourthly, payment of the commission for issuing a BG should be transferred to the bank account, not the broker.

That's all for today! See you in the next article.

P.S.: Don’t forget that you can run into a fake either by working with a broker (intermediary) or with a bank. Therefore, be sure to check bank guarantees for authenticity, or better yet, work with trusted banks. Quickly calculate the cost of BG, and also choose reliable bank And best conditions You can apply for a guarantee on the website -

The TenderHelp online service allows you to receive different types of bank guarantees quickly and without visiting the bank. Another important advantage is high level security for service clients. In this article we will look at the features of bank guarantees for participation in auctions under 223-FZ.

Why do you need a bank guarantee for government procurement?

To submit an application for participation in tenders under 223-FZ, at the request of the customer, it may be necessary to provide its security. This allows you to protect the customer from unscrupulous performers and ensures that the supplier of goods or services approaches the competition responsibly and will properly fulfill its obligations at all stages - from filing an application to completing cooperation if it becomes the winner of the purchase. One of the most convenient and common methods of such security is a bank guarantee to ensure the execution of the contract 223 Federal Law.

Which organizations conduct tenders under 223-FZ

According to the law “On the procurement of goods, works, services of certain types legal entities» No. 223 conduct auctions and competitions state companies, State Unitary Enterprise, State Autonomous Institution, Municipal Unitary Enterprise, subsidiaries municipal enterprises and state-owned companies, enterprises from the sphere natural monopolies and some others. Full list organizations covered by 223-FZ are listed in Part 2 of Article 1.

What kind of auctions can take place under 223-FZ

The law provides for the possibility of holding auctions and competitions, including in electronic form. According to Art. 4 (part 3) list of goods and services that can be purchased using electronic tenders, may be regulated by a decree of the Russian government.

Types of bank guarantee under 223-FZ

According to 223-FZ, a bank guarantee can be issued:

• To secure an application for participation in the auction. Such a guarantee insures the auction organizer against the fact that the bidder suddenly changes the price he offered, withdraws his bid, etc. If this happens, the bank will pay a penalty to the tender organizer, and then the bidder will have to bear full financial responsibility to the credit organization from which he received a bank guarantee.
• To ensure the return of the advance payment paid by the customer. This allows the customer to return the amount of the advance paid to the contractor if the contractor repudiates his obligations after receiving the advance.
• To ensure fair execution of the terms of the contract concluded following the tender. If the contractor does not fulfill his obligations under the concluded contract, does not fulfill them fully or improperly, then the bank will pay the customer the amount specified in the guarantee.

Requirements for guarantor banks

The Law “On the procurement of goods, works, services by certain types of legal entities” dated July 18, 2011 does not establish strict requirements for banking organizations issuing the guarantee. There is no requirement that the bank be included in the register of banks of the Ministry of Finance of the Russian Federation that have the right to issue guarantees, as is the case with . The bank simply does not have the right to issue a guarantee exceeding 10% of its capital.

But it must be taken into account that the customer has the right, at his discretion, to include in the tender documentation some additional requirements to the guarantor bank. For example, demand that it be included in the mentioned list of the Ministry of Finance, occupy certain positions in the rating of banks, have financial indicators no worse than certain ones, etc.

Warranty requirements

Although bidding participants have fewer restrictions when working under 223-FZ, there are still certain mandatory requirements for a bank guarantee. These include:

• The established duration of the guarantee, which depends on the requirements of the tender documentation.
• Irrevocability of the guarantee - the bank cannot revoke it before the expiration date under any circumstances.
• An indication of the amount that the customer will receive if the supplier does not fulfill certain of its obligations.
• List of obligations of the tenderer, the fulfillment of which is ensured by the guarantee.

Having received a bank guarantee, the auction organizer (customer) must accept or reject it within three days. According to 223-FZ, the guarantee does not need to be entered into the appropriate register of the Federal Treasury of the Russian Federation, as required by 44-FZ. But the auction organizer has the right to verify the authenticity of the guarantee provided to him: to make sure that the bank really exists by contacting the directory of credit institutions on the website of the Central Bank of the Russian Federation, and to send an official request to the bank to confirm the issuance of the guarantee. If authenticity is not confirmed, then the company or individual entrepreneur risk being included in the official register of unscrupulous suppliers, and those responsible are facing criminal charges.

The amount of security for the application under 223 Federal Law and the cost of the guarantee

The required amount of security is given in the tender documentation. According to 44-FZ, the customer is required to indicate security in the amount of 10-30% of the maximum value of the entire contract, and if it is above 50 million rubles, then justification for the price is also required. When working under 223-FZ there is no such framework.

The amount of guarantee that a potential bidder can count on is calculated by the bank individually. As with a loan, it depends on reputation, collateral and other nuances.

The cost of a bank guarantee is set by the credit institution as a percentage of the guarantee amount. Sometimes it can be calculated individually, depending on the bank’s risks. What matters is the validity period of the guarantee, the presence or absence of collateral or other security and other factors significant for the bank.

Using the TenderHelp service tariff calculator, you can quickly calculate the approximate cost of the guarantee, send an application to the bank and receive an offer as quickly as possible. To obtain a guarantee, you don’t even need to visit the bank - you only need a package of documents and an electronic digital signature. Documents are saved in the system and loaded automatically when a new application is created. You just need to check their relevance.

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 a single federal register. Therefore, any customer demands to include 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 according to 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 by certain types of legal entities”, developed 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