The Arbitration Court of the North-Western District came to such an interesting conclusion in its decision of December 26, 2017 in case No. A56-4414 / 2017.

The court substantiated its legal position as follows.

The tender commission of the authorized body - the State Procurement Committee of the Leningrad Region rejected the application of the procurement participant, who, instead of the original bank guarantee, which is the security of the application for participation in the tender, provided its copy as part of the application submitted by him.

The procurement participant filed a complaint with the control body in the field of procurement.

By the decision of the Leningrad OFAS Russia dated December 23, 2016 in case No. 1839-03-10322-RZ / 16, the actions of the competition commission to reject the application for participation in the competition were declared illegal.

This decision was challenged by the authorized body - the State Procurement Committee of the Leningrad Region in the Arbitration Court of the city of St. Petersburg and the Leningrad Region.

By the decision of the court of first instance dated May 15, 2017, the Committee was denied the stated requirement. The decision of the control body in the field of procurement was recognized as lawful.

By the decision of the Thirteenth Arbitration Court of Appeal dated September 7, 2017, the said decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region was canceled; the contested decision of the OFAS was declared illegal.

The arbitration court of the cassation instance supported the position of the arbitration court of the city of St. Petersburg and the Leningrad Region and the Leningrad OFAS Russia on the following grounds.

By virtue of part 2 of article 51 of Law No. 44-FZ, a participant in an open tender submits in writing an application for participation in an open tender in a sealed envelope that does not allow viewing the contents of the application before opening, or in the form of an electronic document (if such a form of application is allowed by the tender documentation ). An application for participation in an open tender must contain all the information specified by the customer in the tender documentation, including documents confirming the submission of security for an application for participation in an open tender (a payment order confirming the transfer of funds as security for an application for participation in an open tender, or a copy of of this payment order or a bank guarantee that meets the requirements of Article 45 of the said Law).

The tender commission rejects the application for participation in the tender if the tender participant who submitted it does not meet the requirements for the tender participant specified in the tender documentation, or such an application is recognized as not meeting the requirements specified in the tender documentation (Part 3 of Article 53 of Law No. 44-FZ ).

In this case, the courts of two instances found that the only reason for refusing to allow the Company to participate in the tender was the fact that, in the opinion of the tender commission, the bank guarantee cannot be presented in the form of a copy.

However, paragraph 6 of Article 45 of Law No. 44-FZ contains an exhaustive list of grounds for refusing to accept a bank guarantee by a customer:

1) lack of information about the bank guarantee in the register of bank guarantees;

2) non-compliance of the bank guarantee with the conditions specified in parts 2 and 3 of this article;

3) non-compliance of the bank guarantee with the requirements contained in the notice of procurement, invitation to participate in the selection of the supplier (contractor, performer), procurement documentation, draft contract, which is concluded with a single supplier (contractor, performer).

Such a basis as the presentation of a copy of a bank guarantee is not provided for by Part 6 of Article 45 of Law No. 44-FZ. Such a requirement is not established by the “Competitive Documentation” itself. At the same time, the tender commission itself has not established any specific inconsistencies of the bank guarantee provided by the Company with the conditions specified in parts 2 and 3 of article 45 of Law No. 44-FZ, as well as with the requirements of the “Tender Documentation”.

Moreover, OFAS established (and this is not disputed by the Committee) that the document (bank guarantee) submitted by the participant in the person of LLC was entered in the Register of Bank Guarantees in a timely manner. Thus, the antimonopoly body found that at the time of consideration of the Company's application, the tender committee had or could have had information about the proper security of the application.

The administration and the court of first instance rightfully proceeded from the fact that Article 45 of Law No. 44-FZ, as well as the aforementioned Decree No. 1005, establishes specific requirements for the bank guarantee itself (to its content), which can be presented by the procurement participant to secure its application or performance of a contract. An additional obligatory requirement for the recognition of a bank guarantee as security for an application or performance of a contract is the presence of this bank guarantee in the "Register of Bank Guarantees" (paragraph 8 of the mentioned Article 45).

In accordance with paragraph 9 of Article 45 of Law No. 44-FZ, as well as paragraph 4 of Decree No. 1005 "Register of Bank Guarantees" contains the following information: the name and location of the bank that is the guarantor; about the identification number of the taxpayer; on the name and location of the supplier (contractor, executor), which is the principal; about the identification number of the taxpayer; on the amount of money specified in the bank guarantee and payable by the guarantor in the event that the procurement participant fails to comply with the requirements of this Federal Law in established cases; the validity period of the bank guarantee; as well as a copy of the bank guarantee and the purchase identification code.

Taking into account that the implementation of the LLC’s right to present a bank guarantee both in electronic form and on paper (in the absence of established requirements for the form of a bank guarantee in electronic form) cannot be limited by the customer, provided there are sufficient grounds to establish the existence of information about it in "Register of Bank Guarantees", - the court of first instance reasonably supported the conclusion of the Office on the unreasonable rejection of the Company's application by the tender commission.

In this case, the court of first instance, with reference to the ruling of the Supreme Court of the Russian Federation of November 21, 2016 No. 305-ES16-10047 (hereinafter referred to as the Ruling of the Supreme Court of the Russian Federation), took into account the content of the “List of documents submitted by the customer to the bank simultaneously with a requirement to pay a sum of money under a bank guarantee” (hereinafter referred to as the “List”). The named List does not provide for the provision by the beneficiary of the original bank guarantee, made on paper, upon presentation of a demand for payment. Within the meaning of Decree No. 1005, such an original is not a mandatory document, the absence of which allows the bank not to make a payment.

Since the conclusions of the Arbitration Court of the city of St. Petersburg and the Leningrad Region correspond to the actual circumstances of the case and the evidence available in it, and are also based on the correct application of substantive law, the decision of the Thirteenth Arbitration Court of Appeal is subject to cancellation, and the decision of the court of first instance is left unchanged.

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Procurement Information Portal

Oksana Balandina, chief editor of the State Order System

From July 1, 2018 to January 1, 2019, customers have a transition period - it is allowed to carry out both electronic and paper procedures. From 2019, tenders, auctions, quotes and requests for proposals on paper will be banned, with eight exceptions.
Read what purchases to make on the ETP, how to choose a site and get an electronic signature, what are the rules for concluding contracts during the transition period and after.

All conditions that must be contained in a bank guarantee are listed in Parts 2 and 3 of Art. 45 of Law No. 44-FZ.

Also in accordance with Part 6 of Art. 45 of Law No. 44-FZ, the basis for refusing to accept a bank guarantee by the customer is:

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1. lack of information about the bank guarantee in the provisions of art. 45 of Law No. 44-FZ registers of bank guarantees;
2. non-compliance of the bank guarantee with the conditions specified in Part 2 and Part 3 of Art. 45 of Law No. 44-FZ;
3. non-compliance of the bank guarantee with the requirements contained in the notice of procurement, invitation to participate in the selection of the supplier (contractor, performer), procurement documentation, draft contract, which is concluded with a single supplier (contractor, performer).

According to part 8.2 of Art. 45 of Law No. 44-FZ, additional requirements for a bank guarantee used for the purposes of Law No. 44-FZ, the procedure for maintaining and placing a register of bank guarantees in a unified information system, the procedure for creating and maintaining a closed register of bank guarantees, including the inclusion in it of information, the procedure and terms for providing extracts from it, the form of the requirement for the payment of a sum of money under a bank guarantee are established by the Government of the Russian Federation.

Thus, Decree of the Government of the Russian Federation of November 8, 2013 No. 1005 approved 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" (hereinafter - Additional Requirements), the list of documents submitted by the customer to the bank simultaneously with the requirement to pay the amount of money under a bank guarantee (hereinafter referred to as the List), the rules for maintaining and placing in the unified information system in the field of procurement a register of bank guarantees (hereinafter referred to as the Rules), the form of the requirement to pay the amount of money under a bank guarantee (hereinafter referred to as the Form).

A bank guarantee is issued in writing on paper or in the form of an electronic document signed with an enhanced unqualified electronic signature of a person entitled to act on behalf of the bank (hereinafter referred to as the guarantor), on the terms determined by civil law and Art. 45 of Law No. 44-FZ (Additional requirements).

That is, the original of the bank guarantee can be both a bank guarantee issued on paper and a bank guarantee in the form of an electronic document signed with an enhanced unqualified electronic signature of a person entitled to act on behalf of the bank.

Since the question is about an electronic auction, according to Part 1 of Art. 60 of Law No. 44-FZ, the exchange of information related to obtaining accreditation on electronic sites and holding an electronic auction between a participant in such an auction, a customer, an operator of an electronic site is carried out on an electronic site in the form of electronic documents, and in accordance with Part 10 of Art. 112 of Law No. 44-FZ, contracts based on the results of an electronic auction are concluded on electronic platforms.

Thus, if the contract is concluded as a result of an electronic auction, the bank guarantee is “transferred” by the winner of the electronic auction to the customer through the electronic platform in the form of an electronic document signed by an enhanced unqualified electronic signature of a person entitled to act on behalf of the bank (such a bank guarantee is the original document in electronic form). Law No. 44-FZ does not establish a requirement for the winner of an electronic auction to transfer a bank guarantee drawn up in writing on paper.

In the event that we are talking about the conclusion of a contract based on the results of an electronic auction, the winner of the electronic auction provides the original bank guarantee through the personal account of the electronic site, since Law No. 44-FZ does not provide for the exchange of documents in paper form.

No, the supplier has the right to submit a copy.

You 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 of May 19, 2015 No. 07-04-05 / 09-319, the letter of the Ministry of Economic Development of Russia of January 26, 2015 No. D28i-128.

Rationale

What requirements must a bank guarantee from a procurement participant meet?

It is still impossible to 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 of May 19, 2015 No. 07-04-05 / 09-319, the letter of the Ministry of Economic Development of Russia of January 26, 2015 No. D28i-128.

From June 1, 2018, bank guarantees for public procurement will be issued by banks that are included in a special list of the Ministry of Finance. It will be posted on the department's website. The requirements for banks will be approved by the Government. In the meantime, procurement participants use the list of banks that is valid for bank guarantees in the field of taxation. To do this, go to the "Activities" tab, then in the "Tax relations" section, open the link "Tax and customs tariff policy" and select "List of banks that meet the established requirements for accepting bank guarantees for tax purposes".

This procedure follows from parts 1-1.2 of Article 45 of the Law of April 5, 2013 No. 44-FZ, paragraph 3 of Article 74.1 of the Tax Code.

How should a guarantee be issued?

The participant's bank guarantee must be irrevocable and contain:

 the amount to be paid by the guarantor bank to the customer in the established cases;

 obligations of the participant guaranteed by the bank;

 the obligation of the guarantor bank to pay the customer a penalty in the amount of 0.1 percent of the guarantee amount for each day of delay;

 period of validity;

 a list of documents that the customer must submit to the bank if he demands money under a bank guarantee (approved by Decree of the Government of the Russian Federation of November 8, 2013 No. 1005).

A complete list of information that must be in a bank guarantee is given in part 3 of article 44, parts 2, 3 of article 45 of the Law of April 5, 2013 No. 44-FZ.

Separately, the Government of the Russian Federation has established additional requirements for bank guarantees.

1. The guarantee must include:

 the right of the customer to demand in writing the entire amount of the security or part of it, if the supplier violates obligations;

 the ability to transfer the right to claim under the guarantee if the customer changes. But the customer must first notify the guarantor about this;

 the condition that all expenses under the bank guarantee are borne by the guarantor.

2. It is impossible to prescribe in the guarantee that:

 the guarantor will not pay the money if the customer does not provide him with a judicial act or a notice that the counterparty has not fulfilled its obligations or the contract has been terminated. Exception: these conditions are spelled out in the contract or established by the legislation of Russia;

 the customer must submit to the guarantor a report on the execution of the contract;

 the customer must transfer to the guarantor the documents that are not in the list.

3. The guarantor must number, stitch, sign and seal all sheets of the bank guarantee. But only if the guarantee is issued in paper form on several sheets.

This is stated in the Additional Requirements, which are approved by Decree of the Government of the Russian Federation of November 8, 2013 No. 1005.

It is impossible to independently establish other requirements for bank guarantees. For example, to demand from the guarantor bank a general license of the Bank of Russia or a specific amount of the bank's own funds. This violates the rights and interests of procurement participants and limits competition. This conclusion was reached by the court in the decision of the Federal Antimonopoly Service of the North-Western District of June 18, 2014 No. A56-54795 / 2013.

When you receive a guarantee, check it for all mandatory and additional requirements. After all, it cannot be supplemented or changed. Exception: if the bank has incorrectly filled in the information or details. Then they draw up an agreement on changing the bank guarantee. It indicates the number of the guarantee, the date of the 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, dated May 15, 2015 No. D28i-1382.

One of the principles of 44-FZ is responsibility for the result and efficiency of procurement. In other words, the government customer needs guarantees that the winner of the tender will sign the contract and fulfill it in compliance with all the stated conditions.

There are two types of guarantees in public procurement:

• Application security- insurance in case the winner refuses to sign the won contract.
• Enforcement of the contract- insures in situations where the supplier does not fulfill the contract or violates its terms.

There are two ways to secure a bid or fulfill a contract.

• Deposit your own money as collateral. The participant transfers the amount specified in the purchase to the settlement account of the customer or the electronic trading platform (from October 1, 2018 to a special account) - depending on the type of procedure. The money will be "frozen" and returned after the winner of the tender is determined or all conditions of the contract are fulfilled.
• Provide a bank guarantee. The bank will reimburse the state customer for the guarantee amount in case of improper performance by the supplier of its obligations. A bank guarantee is issued in accordance with the requirements of 44-FZ, and the supplier pays a commission to the bank for receiving it.

In electronic procurement, you can only transfer your own money, while in paper tenders and closed auctions, you can deposit money and provide a bank guarantee.

What to choose to secure the contract - a cash deposit or a bank guarantee - is decided by the supplier.

When is a bank guarantee issued?

Bank guarantee to secure the application

Ensuring the application in the form of a bank guarantee is possible only when participating in paper tenders or a closed auction. The security is from 0.5 to 5% of the initial maximum contract price: the exact amount is always written in the procurement documentation.

The validity of the bank guarantee provided as security for the application must be at least two months from the date of the deadline for submitting applications. Upon completion of the procedure, the commission for the bank guarantee is not returned to the supplier.

Bank guarantee upon performance of a contract in an electronic auction or tender

The winner of the electronic auction is obliged to sign the contract and provide a bank guarantee within 5 calendar days from the date the customer places the contract on the electronic trading platform. With an open tender - within 10 calendar days.

The security amount is up to 30% of the initial contract price. In case of improper performance of the contract, the bank will pay the customer a guarantee amount for the supplier.

If the terms of the contract provide for an advance, the supplier must ensure its return. That is, the amount for which the guarantee is issued increases by the size of the advance. If the advance is spent for other purposes, the bank returns the funds to the state customer.

In any of the above cases, the bank guarantee is irrevocable, valid for a month from the date of execution of the contract and is issued without collateral and security.

When can the customer demand payment under a bank guarantee?

1. The winner, having won the tender, refuses to sign the contract. At the same time, the participant secured the application with the help of a bank guarantee.
2. The supplier does not fulfill the contract or violates its terms. In this case, the customer must unilaterally terminate the contract or provide evidence that the supplier is violating the terms of the contract.

According to the legislation, the demand of the state customer for payment under the guarantee is extrajudicial, that is, it can be put forward directly to the contract executor within 1 month after the expiration of the contract.

Who can issue a guarantee?

Only financial institutions included in the list of the Ministry of Finance of the Russian Federation. Check in advance if the bank in which you have a current account is on this list.

The electronic agent Kontur.Spectrum will help you get. Send just one application, which will go to several banks. Compare the terms of guarantees and send documents to the bank directly from the service.

What will the bank require from the supplier?

To successfully and quickly obtain a guarantee, find out in advance the conditions of the bank: terms of issue, commission rates, a list of documents, and so on.

The reputation of the company is one of the most important conditions for issuing a guarantee. If the company works in good faith, pays taxes on time and reports to the regulatory authorities, it will certainly receive a bank guarantee.

To provide guarantees, most banks require the same list of documents from the client as for a loan:

• constituent documents (Charter, PSRN, TIN)
• full reporting on financial condition and accounting for 1 year
• completed preliminary application
• tender documentation, minutes (if available) or a link to the auction

For many banks, it is important that the procurement participant has an account opened in it. You also need to be prepared for this so as not to waste time negotiating with banks in which your company does not have an account.

In a bank with which good business relations have already been established, a bank guarantee can be issued according to a simplified scenario. As a rule, quarterly financial statements are sufficient for the financial analysis of a company.

How much does a bank guarantee cost?

The cost of a bank guarantee is determined individually and depends on:

• its duration,
• the degree of risk of payment on it,
• the quality of ensuring the recourse claims of the bank to the client.

As a rule, the commission for issuing a guarantee is from 1% to 5% of the amount of the required security.

The term of receipt is from 1 day to several days (recently, these terms have been reduced, as a bank guarantee is becoming an increasingly popular banking product, and banks are considering electronic applications).

Bank guarantee limit

Before participating in an electronic auction or competition, you can find out in advance whether the bank will give you a guarantee if you win. To do this, you need to contact the bank to set the limit of bank guarantees. In this case, the bank asks you for copies of documents and sets a limit. True, two conditions must be taken into account:

• you will have to pay for setting a limit in some banks - about 1% of the guarantee amount,
• if the financial statements worsen in the next quarter, you will not be issued a bank guarantee.

Setting a limit is helpful. Firstly, this will allow you to find out whether it is worth counting on receiving a bank guarantee in principle, and secondly, after you win the tender, the bank will make a decision to issue a guarantee much faster.

What to do if there are a couple of days left to receive?

It is important for the winner to have time to receive a bank guarantee on time. If you miss the deadline for signing the contract, there is a risk of being included in the register of unscrupulous suppliers. How to be in this case?

Issue a qualified electronic signature certificate and communicate with the bank via the Internet. It is much faster and more convenient than filing paper documents.

Avoid "gray schemes" for obtaining bank guarantees, even if you are promised a guarantee for a day. In practice, the customer can easily calculate by checking the information in the Register of Bank Guarantees on the official website zakupki.gov.ru. It will be even worse if the customer finds out that the guarantee is invalid after you have started to fulfill the contract. In this case, he will be obliged to terminate it, and you will be included in the register of unscrupulous suppliers, a fine and a penalty for breaching the contract.

If you decide to participate in electronic auctions and competitions, study in detail the issue of obtaining a bank guarantee, find out the limit or calculate the cost of securing each specific purchase. Subject to the terms of the contract, there will be no claims from the state customer (and hence payments under your bank guarantee).