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The customer has no right to accept a bank guarantee by mail. The customer has no right to accept a bank guarantee by mail Reasons for the customer’s rejection of a bank guarantee

When a customer and a contractor or supplier enter into a deal, the former asks the latter for a bank guarantee. This is a document that confirms that the contractor will perform the work under the contract, and if this is not the case, the bank will pay compensation to the customer.

To issue a guarantee document, the supplier enters into an agreement with the bank and agrees on the document with the customer. If he accepts the guarantee, it comes into force, and if not, the contractor may end up on the list of unscrupulous suppliers and lose further orders.

We tell you why the customer can reject the document and what the contractor should do.

Why does the customer refuse to accept the bank guarantee?

The customer may reject the warranty document if:

  • the paper is not included in the Unified Register of Bank Guarantees;
  • its text does not comply with legal requirements;
  • The guarantor bank does not have the right to issue a document.

About the registry. In the legislation of the Russian Federation, two laws describe the operation of bank guarantees: 44 Federal Laws and 223 Federal Laws. The first regulates procurement by state and municipal budget companies, the second - organizations with partial participation of the state or state-owned companies that make purchases with non-budgetary money.

If the purchase is carried out under 44 Federal Laws, the bank, after concluding an agreement with the contractor, is obliged to enter the guarantee into a special register. If this does not happen, most likely the paper is fake and the customer is obliged to reject the document.

223 Federal Law does not require entering a document into the register. If the purchase is carried out in accordance with this law, the absence of paper in the register cannot be a reason for refusal.

About the guarantee text. According to the law, the text may change, but there are mandatory points. For example, the document states:

  • obligations of the performer under the contract;
  • amount and validity period of the paper;
  • that the guarantee is irrevocable;
  • a list of documents that the customer needs to receive money from the bank.

If at least one of the required points is missing, the customer has the right to reject the guarantee document, because it will be difficult to obtain compensation later.

About requirements for the bank. Not all banks can issue guarantees, but only those that meet the legal requirements for the size of the authorized capital and credit rating. The customer checks whether the bank meets the legal criteria. If not, it rejects the paper.

What should the contractor do if the guarantee is rejected?

If the customer refuses the guarantee paper, the contractor finds out the reason for the refusal and acts depending on the reason.

If the customer refuses because the document is not in the Unified Register, the contractor asks the bank for clarification. Sometimes guarantees do not get into the register due to technical problems on the bank’s side - then the executor asks the bank to add the paper to the register and informs the customer about this. If this is not the case, the document is probably fake. Then the customer tries to quickly issue another paper, and sues the scammers.

If the customer rejects the document due to incorrect text, the contractor must urgently issue a new document or, in return, with the consent of the customer, provide a security deposit. Then the guarantee amount will have to be paid immediately from your own funds.

If the supplier knowingly sends the customer false or incorrectly executed paper, is included in the Register of Unscrupulous Performers.

If the performer believes that he was included in the register unfairly, he can challenge the decision in court.

In any case, a rejected guarantee is a risk to the transaction. For example, according to the law, after winning a tender, the contractor has only five days to prepare the guarantee paper. It is extremely difficult to re-issue a document and meet deadlines. In such cases, the deal often falls through, and the contractor spoils his reputation.

A bank guarantee is a reliable and profitable guarantee for the execution of a contract. However, sometimes the terms of the contract are such that security must be provided within a minimum period of time and it is not possible to obtain a guarantee in them, since different financial institutions consider applications for obtaining the required document in different terms. If the security is not submitted on time, the contractor risks not only losing the contract, but also being included in the Register of Unscrupulous Suppliers. So what can be done legally in such a situation?

Option 1. Play for time.

The Contract System Act does not provide many legal options for how a contractor can extend the time it takes to provide security. Actually, there is only one universal option in which the supplier cannot be accused of non-compliance with legal requirements. With this option, the contractor needs to carefully study the procurement notice, all design documentation of the contract and other official information. They often contain inaccurate details or other minor discrepancies in the execution of documents. If such errors can be found, the contractor will be able to submit a protocol of disagreements to the customer for approval. In this case, he will have several days (no more than three) to receive a bank guarantee.

Minuses. Firstly, three days may not be enough to complete the required document if you apply for it directly to the bank. Secondly, you need to have high professionalism and experience in order to find errors in the documentation, as well as competently draw up a protocol of disagreements.

Option 2. Changing the provision method.

The contractor can pledge financial assets as security, withdrawing them from the company’s circulation, and then, when a bank guarantee is received, replace the security method and provide the document received late. The law allows you to do this freely without any fines or deductions. If the time required to obtain the guarantee is significant, then Law 44-FZ will even make it possible to revise the amount of the guarantee, since part of the obligations under the contract may already be fulfilled.

Minuses. Firstly, the company may not have enough funds for collateral, especially if the contract amount is large. Secondly, if obtaining a guarantee is delayed, then all this time the financial resources will be frozen and will not be able to work for the benefit of the contractor.

Option 3. Working with a broker.

The RosTender company offers its assistance in obtaining a bank guarantee in the shortest possible time. When working with such a reliable broker, the period for receiving a document is reduced to several days, and if the work takes place on an ongoing basis, then the second and subsequent requests can be provided with a guarantee within just 24 hours!

Thus, you can even combine the first or second option with the third to gain some time during which RosTender will do the rest of the work for you.

The best option would be not to tempt fate and immediately contact our specialists to be guaranteed to receive profitable contract execution on time! !

Very often, companies ask the question: who is responsible for compliance of the guarantee with the provisions of the Contract System Law - 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 institution issued it and debited the amount of the commission from the client’s account.

However, the customer refused to accept the security and believed that the winning bidder was avoiding the deal. The institution explained that the guarantee does not contain a suspensive condition, which is stated in paragraph 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 an 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 was unable to get the paid commission back. I had to go to court.

The court of first instance supported the bank

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

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

The company won the appeal

However, the auction winner did not give up and filed an appeal. This time the decision was made in his favor.

In this article we will look at 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 customer’s refusal to accept the guarantee mean for the contractor? The answer is obvious - nothing good. Before the end of the period established by law for concluding a 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. The funds can be borrowed, but it is hardly possible to obtain a bank loan on acceptable terms in a short period of time. This means that, most likely, you will have to secure the contract with your own funds. And if they cannot be found, then the contractor is expected to refuse to conclude the contract, be included in the Register of Unscrupulous Suppliers and lose the 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 be fatal for further business.

How should a potential executor of a contract act in such a situation? Experts recommend that the first step is 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 unlawful actions of the customer.

So, can a customer really refuse to accept a 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 Federal Law No. 44-FZ of 04/05/2013. “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 us briefly 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 Federal Law No. 44-FZ, and the requirements of the procurement documentation, the customer has no right not to accept it. Request from the customer a written or electronic document justifying the refusal and appeal it in court.

Let us give several examples of consideration in various courts of cases related to the customer’s refusal 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.

When considering the 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 contract amount was about 6 million rubles, and for providing the guarantee the company paid the bank a commission of about 200 thousand rubles. The customer, having examined the bank guarantee, came to the conclusion that it does not comply with the law on public procurement, because it lacks a number of mandatory conditions. In this regard, the participating company was denied a contract.

When satisfying the demands of the participating company for the recovery of damages and lost profits, the court took into account that this company took part in the approval of the bank guarantee. Therefore, the amount of losses and lost profits was reduced by half.

Source - Resolution 9 of the Arbitration Court of Appeal dated 07/05/2016 in case No. 09AP-26750/2016.

2. The court declared the inclusion of a procurement participant in the register of unscrupulous suppliers (URS) illegal, since the company took the necessary actions to replace the bank guarantee that did 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 on concluding 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 had evaded 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 dishonesty of the participant’s behavior - the commission of deliberate actions (inactions) that would contradict the law on public procurement. At the same time, the procurement participant had no intention of evading concluding the contract and immediately, as soon as it became known about the rejection of the bank guarantee, he sent the customer an explanation from the bank and a new bank guarantee.

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

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

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 pointed out that the company participating in the procurement should have exercised due diligence when issuing a bank guarantee through an intermediary and independently checked its availability in the register on the official government procurement website.
Source - Resolution of the Arbitration Court of the East Siberian District dated July 7, 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 edition of Law No. 44-FZ “On the contract system in the field of procurement”, from July 1, 2018, the register of bank guarantees in the Unified Information System is not available to procurement participants. Only the purchasing customer can check the presence of a bank guarantee in the register. In this regard, the procurement participant can obtain confirmation of the issue of a bank guarantee by contacting the bank directly. We recommend using for these purposes only phone numbers listed on the bank’s official website. 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.

Experts from the Credit Insurance Agency recommend that you carefully approach the issue of obtaining bank guarantees. Avoid unreliable intermediaries, no matter what favorable conditions they promise you. Don’t be afraid to spend time studying the tender documentation and checking the layout of the bank guarantee. Be sure to agree on the warranty layout with the customer in advance. Following these simple requirements will help you avoid unpleasant situations. And if the customer unreasonably rejected the guarantee you provided, do not be afraid to defend your interests in court.

Do you want to always be up to date with events -

When signing the contract, as security for the contract, the participant attached not a copy, but a draft bank guarantee (the attached file does not have a signature or seal of the bank that issued this bank guarantee (hereinafter - BG). The customer has reached the deadline for signing the contract, the BG is not in the BG register in the UIS, but the contractor claims that at the time the customer signs the contract, the BG is no longer in the project, namely, a BG certified by the bank, with signatures, seals, and will soon be entered into the register BG in EIS.
The deadline for signing the draft contract by the auction winner ended on December 15. He signed the project, attaching to it a draft bank guarantee without the signature or seal of the bank. On December 19, it turned out that information about the bank guarantee was included in the register of bank guarantees (on the same day). Moreover, the date of issue of the bank guarantee is December 18. The period for signing the contract by the customer ends on December 20.
What does the customer need to do? Can the attached BG project be considered a properly executed security if the BG appears in the register before the deadline for signing the contract by the customer?

In accordance with the Federal Law of 04/05/2013 N 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 Law N 44-FZ), the execution of a contract can be ensured, in particular, by providing bank guarantee issued by the bank and meeting the requirements of Art. 45 of this federal law.
Law N 44-FZ provides that a contract is concluded after the procurement participant with whom the contract is concluded provides security for the execution of the contract in accordance with the specified federal law.
According to Law No. 44-FZ, if a procurement participant with whom a contract is concluded fails to provide security for the execution of the contract within the period established for concluding the contract, such participant is considered to have evaded concluding the contract.
The sequence of actions of the parties in connection with the conclusion of a contract based on the results of an electronic auction is regulated by Law No. 44-FZ.
Thus, Law No. 44-FZ establishes that within five days from the date the customer places a draft contract in the Unified Information System (EIS), the winner of an electronic auction places in the EIS a draft contract signed by a person authorized to act on behalf of the winner of such an auction, as well as a document confirming the provision of security for the execution of a contract and signed with an enhanced electronic signature of the specified person.
According to Law No. 44-FZ, customers, as security for the execution of contracts, accept bank guarantees issued by banks included in the list of banks provided for by the Tax Code of the Russian Federation that meet the established requirements for accepting bank guarantees for tax purposes.
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 (Law No. 44-FZ).
Law No. 44-FZ provides that the bank guarantee provided by the procurement participant as security for the execution of the contract, information about it and the documents provided for in Part 9 of the same article, as a general rule, must be included in the register of bank guarantees located in the Unified Information System. Such information and documents must be signed with an enhanced electronic signature of a person authorized to act on behalf of the bank. Within one business day after such information and documents are included in the register of bank guarantees, the bank sends to the principal an extract from the register of bank guarantees.
The register of bank guarantees also includes a copy of the bank guarantee (Law No. 44-FZ).
In accordance with Law N 44-FZ of the Government of the Russian Federation dated November 8, 2013 N 1005, Additional requirements for a bank guarantee used for the purposes of the Federal Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” were approved. According to these requirements, a bank guarantee is drawn up in writing on paper or in the form of an electronic document signed with an enhanced non-qualified electronic signature of a person authorized to act on behalf of the bank, under the conditions determined by civil legislation and Law No. 44-FZ.
Thus, if the execution of a contract concluded as a result of an electronic auction (hereinafter also referred to as the auction) is secured by a bank guarantee, such a guarantee that meets the established requirements must be included in the register of bank guarantees (in the form of a copy) with placement in The UIS of relevant information about this guarantee was provided to the customer by the auction winner by posting it in the UIS along with a draft contract signed by a person entitled to act on behalf of the winner of such an auction.
This conclusion also follows from law enforcement practice. Thus, in the Moscow District AS dated December 22, 2015 N F05-17887/15, it is noted that within the time limits established by Law N 44-FZ, both a draft contract, signed in the manner prescribed by law, and a document confirming the security of the contract must be provided, corresponding to N 44-FZ, in other words, meeting the requirements established by law. And the AS of the West Siberian District dated June 22, 2017 N F04-1696/17 states that draft bank guarantees do not indicate the fulfillment of the obligation to provide appropriate security provided for by N 44-FZ and the procurement documentation.
Let us pay attention to the conclusions contained in the AS of the North-Western District dated 10/12/2017 N F07-11315/17. In a specific controversial situation, the court recognized that the sending by the auction winner of a valid bank guarantee outside the five-day period provided for signing the draft contract does not indicate compliance by such a winner with the provisions of Law N 44-FZ, which strictly regulates the sequence of actions of the customer and the auction winner when concluding contracts and deadlines for their completion.
The antimonopoly authorities also come to the conclusion that the presentation of a document confirming the performance of the contract, namely a bank guarantee, without the signature and seal of the bank does not meet the requirements of the provisions of Law No. 44-FZ. Such a bank guarantee is not a document in its essence (decision of the Ulyanovsk OFAS Russia dated March 16, 2016, see also Krasnodar OFAS Russia dated July 11, 2014 N K-54/2014).
Thus, a draft bank guarantee that is not signed by the bank does not indicate that the auction winner has fulfilled the legal requirement to provide security for the execution of the contract. If, within the period established for concluding a contract, the auction winner has not provided a properly executed bank guarantee, the customer has grounds not to accept the submitted document as a bank guarantee and recognize such procurement participant as having evaded concluding the contract, despite the fact that information about the bank guarantees are included in the register of guarantees contained in the Unified Information System (see also FAS Russia dated 08/18/2017 N K-1064/17, decision of the Khabarovsk OFAS Russia dated 10/02/2017 N 363, decision of the Krasnoyarsk OFAS Russia dated 09/18/2017 N 1539).
In conclusion, we note that under the described circumstances, recognition of the winner as having evaded concluding a contract can be considered as based on a formal approach to the provisions of N 44-FZ (since on the day of signing the contract, the winner received an appropriate bank guarantee, which is included in the appropriate register). We have not found any law enforcement practice indicating that under such circumstances the customer’s decision to recognize the winner as having evaded concluding a contract may be considered unlawful, but we cannot completely exclude the possibility of such an approach.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Erin Pavel

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Alexandrov Alexey

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.