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10.06.2021

Incorrect bank guarantee: who is to blame and what to do. Ensuring the execution of the state contract: avoiding mistakes in registration Error in the bank guarantee oktmo

In this article, we will consider a situation where a customer refuses to accept a bank guarantee as security for the performance of a contract. In practice, such situations occur quite often and can lead to the most unpleasant consequences for the performer.

What does the contractor's refusal to accept the guarantee mean for the contractor? The answer is obvious - nothing good. Before the expiration of the term established by law for the conclusion of the contract, the contractor must provide another bank guarantee (and there is a high probability that there may not be enough time for this) or ensure the execution of the contract in cash. Funds can be borrowed, but it is hardly possible to get a bank loan in a short time on acceptable terms. This means that, most likely, you will have to provide the contract with your own funds. And if they cannot be found, then the contractor is expected to refuse to conclude a contract, be entered into the Register of unscrupulous suppliers and the loss of funds contributed as security for the application for participation in the tender. The most unpleasant of all of the above is not even the loss of money and the contract that the contractor was counting on, but the damage to the company's business reputation, which can become fatal for further business.

How should a potential contractor act in such a situation? Experts recommend first of all to understand the reasons that prompted the customer to refuse to accept the bank guarantee. And if the refusal is not properly justified, then you should definitely take measures to protect your interests from the unlawful actions of the customer.

So, can the customer really refuse to accept the bank guarantee. Yes maybe. But at the same time, the law clearly stipulates the grounds for such a decision. In accordance with Part 6 of Art. 45 of the Federal Law No. 44-ФЗ dated 05.04.2013. "On the contract system in the field of procurement of goods, works, services for state and municipal needs", the customer may refuse to accept a bank guarantee to ensure the execution of the contract only in the following cases:

Let's summarize the above - if the bank guarantee provided by the contractor to secure the performance of the contract meets the requirements of Art. 45 of the Federal Law No. 44-FZ, and the requirements of the procurement documentation, the customer has no right not to accept it. Demand from the customer a written or electronic document justifying the refusal and appeal it in court.

Here are some examples of consideration in various courts of law of cases related to the refusal of the customer to accept bank guarantees.

1. The customer did not accept the bank guarantee - the participant sued the bank that issued the guarantee for losses and lost profits.

By revising appeal 9 The Arbitration Court of Appeal sided with the procurement company, which, due to a bank guarantee that did not comply with the provisions of the law, was deprived of the opportunity to conclude a contract. At the same time, the amount of the contract was about 6 million rubles, and for the provision of the guarantee, the company paid the bank a commission of about 200 thousand rubles. The customer, having considered the bank guarantee, came to the conclusion that it does not comply with the public procurement law, because it lacks a number of mandatory conditions. In this regard, the participating company was denied a contract.

The court, when satisfying the requirements of the participating company for the recovery of losses and lost profits, took into account that this company took part in the negotiation of the bank guarantee. Therefore, the amount of losses and lost profits was halved.

Source - Resolution 9 of the Arbitration Court of Appeal dated 05.07.2016 in case No. 09AP-26750/2016.

2. The court declared illegal the inclusion of the procurement participant in the register of unscrupulous suppliers (PNP), since the company took the necessary steps to replace the bank guarantee that does not comply with the law with a new guarantee.

The customer did not accept the participant's bank guarantee due to the absence of a suspensive condition in it on the conclusion of an agreement for the provision of a bank guarantee. The antimonopoly authority, in turn, made a decision to include the company in the RNP as a participant who avoided concluding a contract.

The court indicated that when included in the register, it is necessary to take into account not only the lack of security for obligations under the contract (bank guarantee), but also the bad faith of the participant's behavior - the commission of deliberate actions (inaction) that would contradict the public procurement law. At the same time, the procurement participant had no intent to evade the conclusion of the contract and immediately, as soon as it became known about the rejection of the bank guarantee, sent the bank's explanations and a new bank guarantee to the customer.

Source - Resolution of the Arbitration Court of the West Siberian District of December 24, 2015 in case No. 45-10215 / 2015.

3. The court recognized as legal the inclusion of the procurement participant in the RNP due to the provision of a bank guarantee that does not comply with the provisions of the law. Registration of a guarantee through an intermediary does not relieve the procurement participant of responsibility.

The customer rejected the bank guarantee due to the fact that it was not included in the register of bank guarantees under 44-FZ. The court indicated that the company participating in the procurement had to exercise due diligence when issuing a bank guarantee through an intermediary and independently verify its presence in the register on the official public procurement website.
Source - Resolution of the Arbitration Court of the East Siberian District of 07.07.2015 in case No. A19-15172 / 2014.

We draw your attention to the fact that in accordance with Part 8.1 of Art. 45 of the new version of the law No. 44-FZ "On the contractual system in the field of procurement", since July 1, 2018, the register of bank guarantees in the Unified Information System is not available for procurement participants. Only the purchaser of the purchase can check the presence of a bank guarantee in the register. In this regard, the procurement participant can receive confirmation of the issue of a bank guarantee by contacting the bank directly. We recommend using for these purposes only the phone numbers indicated on the official website of the bank. In addition, the guarantor bank, at the request of the procurement participant, is obliged to provide an extract from the register of bank guarantees, which, if necessary, can be transferred to the customer.

The experts of the Credit Insurance Agency recommend that you carefully approach the issue of obtaining bank guarantees. Avoid unreliable intermediaries, whatever profitable terms they didn't promise you. Don't be afraid to take the time to study the tender documents and check the layout of the bank guarantee. Be sure to coordinate the layout of the guarantee with the customer in advance. Following these simple requirements will help you avoid unpleasant situations. And if the customer unreasonably rejected the guarantee presented by you, do not be afraid to defend your interests in court.

Do you want to always be always aware of events -

How to reflect in the accounting the security of obligations in the form bank guarantee in the absence of original documents?

Answer

If there are no originals of bank guarantees, reflect them on the books on the basis of an extract from the register of bank guarantees.

Responsibility for the fact that you have corrected errors and reflected transactions in the accounting later than the date of their registration is not provided for by the current legislation.

Maxim Chemerisova, Director of the Contract System Development Department of the Ministry of Economic Development of Russia

How to establish a requirement to secure an application under Law No. 44-FZ

When you receive your warranty, check it for all mandatory and optional requirements. After all, it cannot be supplemented or changed. Exception: if the bank did not fill out the information or requisites properly. Then they draw up an agreement on changing the bank guarantee. It indicates the number of the guarantee, the date of changes and their details. Such changes are an integral part of the bank guarantee.

Information about them is reflected in the register of bank guarantees. Such clarifications, as well as the procedure for changing guarantees, are given in the letters of the Ministry of Economic Development of Russia dated June 22, 2015 No. D28i-1815, and dated May 15, 2015 No. D28i-1382.

The participant's bank guarantee must be in the bank guarantee register. It is maintained and placed in the UIS by the Treasury of Russia in accordance with the Rules approved by the Government of the Russian Federation of November 8, 2013 No. 1005.

To confirm that the bank guarantee is in the register, the participant submits to the customer an extract from this register with a signature and seal. The statement is generated automatically based on the data of the register entry.

This is stated in part 8 of article 45 of the Law of April 5, 2013 No. 44-FZ, paragraph 25 of the Procedure approved by order of the Ministry of Finance of Russia dated December 18, 2013 No. 126n.

By the way, you can include a sample bank guarantee in your procurement documentation. True, you have no right to demand that the guarantee conforms to this sample. This is not legally established and you cannot refuse to accept the warranty because of this.

You still cannot refuse to accept a bank guarantee if the winner of the purchase does not give you its original. After all, information about it can be obtained from the register of bank guarantees.

Such clarifications are in paragraph 6 of the annex to the letter of the Treasury of Russia dated May 19, 2015 No. 07-04-05 / 09-319, the letter of the Ministry of Economic Development of Russia dated January 26, 2015 No. D28i-128.

Once you have received your bank guarantee, you have three business days to accept or reject it. If the customer is a government agency that has transferred its procurement authority to another organization, then it is she who makes such a decision (part 6 of article 15 of the Law of April 5, 2013 No. 44-FZ, clause 6.3 of the joint letter of December 17, 2014 No. Of the Ministry of Finance of Russia No. 02-02-05 / 65137 and the Ministry of Construction of Russia No. 26484-YR / 08).

Natalia Guseva, Director of the Center for Education and Internal Control of the Institute of Continuing Professional Education "International Financial Center", State Counselor of the Russian Federation of the 2nd class, Ph.D. n.

How to fix errors in accounting and reporting

A mistake is recognized as the incorrect reflection of the facts of economic activity in accounting and reporting. They also assess the situation when the transactions were not reflected in the accounting at all. Simply put, an error is if you made incorrect entries, did not reflect the operation, or filled out the reporting incorrectly.

Basis for corrections

Make corrections with the primary accounting document - Accounting certificate (f. 0504833). Basis - documents that were not posted in the reporting period or were carried out with errors (for example, an act on the provision of services, an additional agreement, etc.). In the Accounting Certificate, reflect:

    the reason why you are making corrections;

    the name of the corrected accounting register (transaction log), its number, the period for which the register was compiled.

This conclusion follows from part 1 of article 9 of the Law of December 6, 2011 No. 402-FZ, paragraphs 7, 18 of the Instruction to the Unified Chart of Accounts No. 157n.

When you make corrective entries in the accounting registers, the chief accountant (head of the structural unit) puts a mark about this in the Accounting Certificate in the section "Mark of Acceptance of the Accounting Certificate for Accounting". This procedure is established in the Methodological Guidelines approved by order of the Ministry of Finance of Russia dated March 30, 2015 No. 52n.

Correction procedure

Corrections in the electronic register are made by the employee responsible for its formation (clause 18 of the Instruction to the Unified Chart of Accounts No. 157n).

The rules for how to correct an error depend on when it is discovered: before the reporting date or after.

When concluding a state or municipal contract, the contractor is obliged to provide security for its execution in one of two ways:

Bank guarantee

Transfer of funds.

The most common mistakes when performing this action are providing a guarantee that does not meet the conditions of the tender documentation... The consequences of even minor violations can be:

Refusal to conclude a state or municipal contract;

Recognition of the contractor as having evaded the conclusion of the contract and its inclusion in the register of unscrupulous suppliers.

As a rule, both of these consequences occur simultaneously.

In order to avoid negative risks associated with the provision of collateral, it is recommended to carefully and take into account the existing experience in this matter.

Depending on what caused the error and how the contractor acted when providing security, the result of resolving the dispute may be different.

Erroneous transfer of the amount of security (presentation of a guarantee for a smaller amount) than provided for in the procurement documentation.

The amount of security is established by Article 94 of Federal Law No. 44 and is indicated in the notice of procurement, procurement documentation and the draft contract. The collateral requirement is mandatory. The size can be from 5 to 30% of the initial (maximum) contract price, but not less than the amount of the advance.

Since the norms of this article are mandatory, the amount of security cannot be reduced by agreement of the parties, and even minor errors in calculating the amount can lead to the above consequences.

Practical example : the contract was not concluded and the winner of the purchase was included in the register of unscrupulous suppliers due to the fact that they were provided with security for 10 kopecks. less than stipulated by the procurement documentation (Case No. А40-137037 / 2012).

How to fix the error... If such an error still occurs, it should be corrected as soon as possible and the customer should be informed about it. In the case when additional security is submitted before the expiration of the term for concluding the contract (no more than 20 days from the date of posting the protocol for considering applications), the problem has been resolved. When the deadline has already expired (2-3 days left), the amount of security may not be credited to the customer's account, therefore, the actions of the contractor should not be limited to additional payment.

The contractor is obliged to carry out all measures in his control to conclude a contract and confirm his good faith. Such measures may include:

Providing the customer with a cover letter explaining the reasons for the error, indicating how to correct it and attaching a genuine payment order with the bank's mark of execution (or a new bank guarantee).

2. Errors in issuing a bank guarantee

Examples of such errors can be :

The term of the bank guarantee is less than the term of the contract (А60-39092 / 2013);

The bank guarantee only provides coverage for losses, but does not provide for the enforcement of all obligations under the contract (А40-56381 / 2014, А64-1671 / 2014);

The bank guarantee made an error in indicating the name of the customer (А40-49538 / 2013)

The subject of the contract is incorrectly indicated in the bank guarantee (А40-101964 / 2012)

The bank guarantee states that it comes into force only after the signing of the contract (А45-24157 / 2013).

Ways to fix the error: you must immediately contact the bank (as well as several other banks) for the issuance of a correct bank guarantee, inform the customer about this, indicating the timing of the provision of proper security. If the contractor takes all measures in his power to provide adequate security, there is a chance to defend his position in court.

3. The bank did not confirm the provision of a bank guarantee.

The right to check the collateral belongs to the customer by virtue of the law, and such a check will most likely be carried out after the conclusion of the contract. As a rule, the customer sends a written request to the bank. If the bank does not respond to the request or does not confirm the issuance of a bank guarantee, the customer has the right to recognize the contractor as evading the contract and apply to the antimonopoly authority for inclusion in the register of unscrupulous suppliers.

4. The security was sent on the last day of the term and did not arrive to the customer

As a rule, in these cases, the courts side with the customer and recognize the actions of the contractor who sent the security on the last day of the term as unfair. Consequences - refusal to conclude an agreement and inclusion in the register of unscrupulous suppliers. In this case, it is almost impossible to prove the opposite, therefore, the contractors are advised to send the necessary documents to the customer in advance.

5. The guarantee was not provided on time due to the Bank's long consideration of the contractor's application.

If the contractor acted in good faith and informed the customer about his appeal to the bank, about the timing of issuing and submitting a bank guarantee, and also applied to other banks for the issuance of a guarantee, the contractor's actions can be recognized as appropriate (А56-36273 / 2012).

However, it should be borne in mind that the contractor is not deprived of the initial opportunity to contact other banks and must act reasonably by sending such applications in advance, and not in the last days of the deadline (А40-1502 / 2013).

General conclusion: in any situation, the actions of the performer must be exhaustive, that is, complete and sufficient to eliminate the mistake. The winner of the procurement must take all measures in his control to conclude the contract and provide security. Otherwise, the contract will not be signed and the organization risks getting into the register. To eliminate risks, you should maintain constant contact with the customer, record your requests, inform about your actions to receive and provide security in writing and by e-mail. It is also necessary to start the process of providing security in advance and begin to eliminate possible errors as soon as they are identified. The possibility of further judicial protection will depend on the correctness of the actions of the contractor, therefore it is recommended that this issue be given the attention of internal and external specialists.

Read other helpful articles

What should be the further actions of the Contractor?
Olga

Olga, good afternoon! In principle, to appeal to the OFAS, of course, in the order of Art. 105-107 44-FZ, but here you need to understand what exactly was the refusal, it is possible that it was legitimate. The fact that the customer did not report anything before deciding on the refusal - he should not do this, moreover, the contractor has a choice as to the method of ensuring the execution of the contract - BG or funds for a deposit, for example, a fresh decision of the FAS on the complaint of a participant

Decision of the FAS Russia of 11.01.2017 in case No. K-17/17

The Federal Antimonopoly Service has received a complaint from the Applicant about the actions of the Auction Commission when the Operators of the electronic site, the Customer, the Authorized Body, the Auction Commission hold an Auction.
According to the Applicant, his rights and legitimate interests were violated by the actions of the Auction Commission, which made an unlawful decision to refuse to accept the Applicant's bank guarantee, presented to ensure the execution of the contract.
The representatives of the Customer did not agree with the argument of the Applicant and informed that during the Auction the Customer, the Authorized Body, the Auction Commission acted in accordance with the provisions of the Law on the Contract System.
As a result of consideration of the complaint and implementation in accordance with paragraph 1 of part 15 of Article 99 of the Law on the contractual system of unscheduled inspection, the Commission established the following.
In accordance with the notice of the procurement, procurement documentation, protocols drawn up when determining the supplier (contractor, executor):
1) the notice of the procurement is posted in the EIS - 11/28/2016;
2) the method of determining the supplier (contractor, executor) - Auction;
3) initial (maximum) contract price - 1,950,000,000 rubles;
4) 2 applications from procurement participants were submitted for participation in the Auction;
5) 2 procurement participants were allowed to participate in the Auction;
6) the date of the Auction - 12/19/2016;
7) LLC "G" was declared the winner of the Auction with a minimum offer for the contract price of 1,823,250,000 rubles.
In accordance with part 3 of Article 70 of the Law on the Contract System, within five days from the date of placement by the customer in the unified information system of the draft contract, the winner of the electronic auction shall place the draft contract in the unified information system, as well as a document confirming the provision of security for the execution of the contract, and signed with an enhanced electronic signature of the specified faces.
According to part 1 of Article 45 of the Law on the Contract System, Customers, as security for applications and execution of contracts, accept bank guarantees issued by banks included in the list of banks provided for in Article 74.1 of the Tax Code of the Russian Federation that meet the established requirements for accepting bank guarantees for tax purposes.
According to part 2 of Article 45 of the Law on the Contract System, a bank guarantee must be irrevocable and must contain:
1) the amount of the bank guarantee payable by the guarantor to the customer in the cases specified in Part 13 of Article 44 of this Federal Law, or the amount of the bank guarantee payable by the guarantor to the customer in the event of improper performance of obligations by the principal in accordance with Article 96 of this Federal Law;
2) obligations of the principal, the proper performance of which is secured by a bank guarantee;
3) the obligation of the guarantor to pay the customer a penalty in the amount of 0.1 percent of the amount payable for each day of delay;
4) the condition according to which the fulfillment of the obligations of the guarantor under the bank guarantee is the actual receipt of funds to the account on which, in accordance with the legislation of the Russian Federation, transactions with funds received by the customer are accounted for;
5) the validity period of the bank guarantee, taking into account the requirements of Articles 44 and 96 of this Federal Law;
6) a suspensive condition providing for the conclusion of an agreement for the provision of a bank guarantee for the obligations of the principal arising from the contract upon its conclusion, in the event that a bank guarantee is provided as security for the performance of the contract;
7) the list of documents established by the Government of the Russian Federation provided by the customer to the bank simultaneously with the requirement to pay the amount of money under the bank guarantee.
According to part 3 of Article 96 of the Law on the Contract System, the execution of the contract can be ensured by the provision of a bank guarantee issued by the bank and complying with the requirements of Article 45 of the Law on the Contract Systems, or by depositing funds to the account specified by the customer, on which transactions with funds are accounted for in accordance with the legislation of the Russian Federation arriving to the customer. The method of ensuring the execution of the contract is determined by the procurement participant with whom the contract is concluded independently. The term of the bank guarantee must exceed the term of the contract by at least one month.
In accordance with part 5 of Article 45 of the Law on the Contact System, the Customer considers the bank guarantee received as security for the execution of the contract within a period not exceeding three working days from the date of its receipt.
According to part 6 of Article 45 of the Law on the Contact System, the basis for refusal to accept a bank guarantee by the customer is, among other things, the non-compliance of the bank guarantee with the conditions specified in parts 2 and 3 of Article 45 of the Law on Contract Systems.
According to part 7 of Article 45 of the Law on the Contact System, in case of refusal to accept the bank guarantee, the customer within the period established by part 5 of Article 45 of the Law on the Contact System shall inform the person who provided the bank guarantee in writing or in the form of an electronic document about this, indicating the reasons which served as the basis for the refusal.
According to part 5 of Article 96 of the Law on the Contact System, if the procurement participant with whom the contract is concluded fails to provide for the execution of the contract within the time period established for the conclusion of the contract, such a participant is considered to have evaded the conclusion of the contract.
According to the protocol of summing up the results of the electronic auction dated December 19, 2016 N 0156200009916000660-3, the procurement participant LLC "G" was recognized as the winner of the Auction.
According to the protocol of refusal to conclude a contract dated December 29, 2016 N 0156200009916000660-4, the winner of the Auction LLC "G" (Applicant) did not provide proper security for the execution of the contract, namely, submitted a bank guarantee that was not inappropriate for the following reasons:
“The Guarantee does not cover all the obligations of the Contractor (Principal) under the Contract, namely in clause 1 of the Guarantee, the obligations of the Contractor (Principal) under the Contract are not fully specified, which are to be secured by the Guarantor, since there is no indication of the obligation of the Guarantor to pay the forfeit claims (penalties) presented by the Customer , fines). Also, in violation of the terms of the Contract, losses, in accordance with the provisions of the Guarantee, are reimbursed only in terms of uncovered forfeit, which is contrary to clause 10.13 of the Contract for compensation for all losses incurred by the Customer as a result of improper performance / non-performance by the Contractor of its obligations, in full in excess of the forfeit;
According to part 3 of Article 96 of the Law, the term of the bank guarantee must exceed the term of the contract by at least one month. Based on this, the period of validity of the Guarantee, based on the minimum terms established by the Law for concluding a contract, must be set at least until June 12, 2018 inclusive (in accordance with the requirements of Part 3 of Article 70 of the Law, based on the fact that the deadline for concluding a contract By the Customer - December 29, 2016, and the term of the Guarantee must exceed the term of the contract, which is 500 calendar days, by one month, then 530 calendar days will expire on June 12, 2018);
Clause 5 of the Guarantee stipulates that “Amendments and additions to the State Contract do not release the Guarantor from obligations under this bank guarantee in case of timely notification by the Beneficiary of the Guarantor of the changes and amendments to the State Contract. The Beneficiary shall notify the Guarantor of all amendments and additions to the State Contract within 10 (Ten) working days from the date of entry into force of the amendments and additions to the State Contract. " The additional mandatory requirements for the Customer (Beneficiary) provided for in clause 5 of the Guarantee during the execution of the Contract contradict the requirements of the documentation and the norms of the Law. "
At the meeting of the Commission, the representatives of the Customer explained that on December 26, 2016 the Applicant submitted a signed draft contract and a bank guarantee dated December 26, 2016 N 9310-2 / 1-2016 issued by KB “E” LLC. 12/29/2016 The Auction Commission, within a period not exceeding three working days from the date of its receipt, decided to refuse to accept this bank guarantee, including on the basis that the validity period of the bank guarantee is 450 calendar days. At the same time, taking into account the requirement of part 3 of Article 96 of the Law on the Contract System, the validity period should be 530 calendar days, since according to clause 13.2 of the draft contract of the documentation on the Auction, the contract validity period is 500 calendar days from the date of the contract. Thus, the Auction Commission decided to refuse to accept the Applicant's bank guarantee.
At the meeting of the Commission, the representatives of the Applicant also explained that the validity period of the bank guarantee is 450 calendar days, while to calculate the validity period of the bank guarantee, information on the term of work, contained in the information card of the Auction documentation, was used.
Thus, the applicant's argument has not been substantiated.
Based on the foregoing and guided by part 1 of Article 2, paragraph 1 of part 15 of Article 99, part 8 of Article 106 of the Law on the Contract System, Administrative Regulations Commission
decided:
To recognize the complaint of LLC "T" unfounded.
This decision can be appealed in court, arbitration court within three months in the manner prescribed by law.

Very often companies ask themselves the question: who is responsible for the compliance of the guarantee with the provisions of the Law on the Contract System - the bank or the procurement participant? The judges gave their answer following a lengthy trial.

The customer did not accept the bank guarantee

The company won the electronic auction and applied to the bank for a guarantee. The credit organization issued it and debited the amount of the commission from the client's account.

However, the customer refused to accept the collateral and considered that the winner of the auction was evading the deal. The institution explained that the guarantee does not contain a suspensive condition, which is stated in clause 6 of part 2 of the Federal Law of April 5, 2013 No. 44-FZ (hereinafter referred to as the Law on the Contract System).

In addition, the document did not provide for the customer's right to undisputed write-off of funds at the expense of the guarantor (part 3 of article 45 of the Law on the contract system).

The company, in turn, returned the guarantee to the bank by issuing an acceptance certificate. But she did not manage to get back the paid commission. I had to go to court.

The first instance court upheld the bank

Rejecting the claim, the judges referred to the Civil Code of the Russian Federation. They explained that when forming the guarantee, the bank proceeds from the needs of the procurement participant and the norms of the law.

In this case, the parties signed an additional agreement that set out the terms of the bank guarantee. The refund of the commission was not provided for by the provisions of the law or the agreed terms.

The company won the appeal

However, the winner of the auction did not give up and appealed. This time the decision was made in his favor.
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