If the customer does not accept the bank guarantee. Refusal to accept a bank guarantee by the customer The customer reviews the received bank guarantee on time

Article 45. Conditions of a bank guarantee. Registers of bank guarantees

  • checked today
  • law of March 28, 2019
  • entered into force on 01/01/2014

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Compare with the edition of the article dated 07/01/2019 06/01/2018 04/01/2015 06/04/2014 01/01/2014

Customers, as security for applications and execution of contracts, accept bank guarantees issued by banks that meet the requirements established by the Government of the Russian Federation.

When establishing requirements for banks, the Government of the Russian Federation establishes requirements for the size of the bank's own funds (capital) and the level of credit rating assigned to a Russian credit organization by one or more credit rating agencies, information about which is included by the Central Bank of the Russian Federation in the register of credit rating agencies, according to national rating scale for the Russian Federation in accordance with the methodology, the compliance of which with the requirements of Article 12 of the Federal Law of July 13, 2015 N 222-FZ “On the activities of credit rating agencies in the Russian Federation, on amending Article 76.1 of the Federal Law “On the Central Bank of the Russian Federation” (Bank of Russia)" and the recognition as invalid of certain provisions of legislative acts of the Russian Federation" was confirmed by the Central Bank of the Russian Federation.

The list of banks that meet the established requirements is maintained by the federal executive body for regulating the contract system in the field of procurement based on information received from the Central Bank of the Russian Federation, and is subject to posting on the official website of the federal executive body for regulating the contract system in the field of procurement in the information telecommunications network "Internet". If circumstances are identified indicating that a bank not included in the list meets the established requirements or that a bank included in the list does not comply with the established requirements, such information is sent by the Central Bank of the Russian Federation to the federal executive body for regulating the contract system in the field of procurement within five days from the date of identification of these circumstances to make appropriate changes to the list.

The bank guarantee must be irrevocable and must contain:

In the case provided for by the notice of procurement, procurement documentation, draft contract concluded with a single supplier (contractor, performer), the bank guarantee includes a condition on the customer’s right to indisputably write off funds from the guarantor’s account if the guarantor within a period of no more than five working days, the customer’s demand for payment of a sum of money under a bank guarantee, sent before the expiration of the bank guarantee, has not been fulfilled.

It is prohibited to include in the terms of a bank guarantee 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.

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.

The grounds for refusal to accept a bank guarantee by the customer are:

  • 1) lack of information about the bank guarantee in the registers of bank guarantees provided for in this article;
  • 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 determining the supplier (contractor, performer), procurement documentation, draft contract, which is concluded with a single supplier (contractor, performer).

In case of refusal to accept a bank guarantee, the customer, within the period established by part 5 of this article, informs the person who provided the bank guarantee in writing or in the form of an electronic document, indicating the reasons that served as the basis for the refusal.

A bank guarantee provided by a procurement participant as security for an application for participation in the procurement, if such a method of securing applications is applicable in accordance with this Federal Law, or as security for the execution of a contract, information about it and the documents provided for in Part 9 of this article must be included to the register of bank guarantees located in the unified information system, with the exception of bank guarantees specified in part 8.1 of this article. 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 information provided for in Part 9 of this article about bank guarantees provided as security for applications and execution of contracts is not posted on the official website, and when purchasing goods, works, services, information about which constitutes a state secret, is included in the closed register of bank guarantees, which is not posted in the unified information system and on the official website.

Additional requirements for a bank guarantee used for the purposes of this Federal Law, the procedure for maintaining and placing in the unified information system the register of bank guarantees, the procedure for forming and maintaining a closed register of bank guarantees, including the inclusion of information in it, the procedure and deadlines for providing extracts from it, The form of the request for payment of a sum of money under a bank guarantee is established by the Government of the Russian Federation.

The register of bank guarantees and the closed register of bank guarantees include the following information and documents:

  • 1) name, location of the bank that is the guarantor, taxpayer identification number or, in accordance with the legislation of a foreign state, an analogue of the taxpayer identification number;
  • 2) name, location of the supplier (contractor, performer) who is the principal, taxpayer identification number or, in accordance with the legislation of a foreign state, an analogue of the taxpayer identification number;
  • 3) the amount of money specified in the bank guarantee and payable by the guarantor in the event of failure by the procurement participant to comply with the requirements of this Federal Law in established cases;
  • 4) validity period of the bank guarantee;
  • 5) a copy of the bank guarantee, with the exception of a bank guarantee, information about which is subject to inclusion in the closed register of bank guarantees in accordance with Part 8.1 of this article;
  • 6) other information and documents, the list of which is established by the Government of the Russian Federation.

The bank that issued the bank guarantee, no later than one business day following the date of its issuance, or the day of making changes to the terms of the bank guarantee, includes the information and documents specified in Part 9 of this article in the register of bank guarantees or sends it within the specified time frame in accordance with the procedure for formation and maintaining a closed register of bank guarantees, information for inclusion in the closed register of bank guarantees.


At the federal level, requirements for a bank guarantee under 44-FZ have been established. They relate to the contents of the document, the validity period, and the bank that issued the guarantee. Read about this in our article.

Requirements for the content of a bank guarantee under 44-FZ

There is no sample bank guarantee as such. But there is a list of requirements for the content of the document. Here's what the warranty should include:

  • the amount of compensation to the customer in case the supplier violates the terms of the contract;
  • list of supplier obligations;
  • the amount of the penalty (in case the bank violates the terms for issuing money);
  • validity;
  • mention of irrevocability;
  • list of documents for receiving money under the guarantee.

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We will separately analyze the warranty period. It depends on the type of collateral. If a procurement is carried out and the bidder secures a bid, the guarantee must be 2 months (at a minimum) beyond the bid submission period. The customer has the right not to accept a warranty with a shorter period. If we are talking about securing a contract, the guarantee must be valid for at least a month longer than the period specified in the contract.

Each bank sets its own conditions for issuing banknotes. Often the cost is not a fixed price, but a percentage, usually 2-3% of the guarantee amount. A pledge of property of an individual entrepreneur or organization may be required, as well as a guarantee if the bank doubts the client’s solvency.

What requirements can the bank present to a client applying for a guarantee:

  • residence in the Russian Federation;
  • annual revenue is not lower than a certain amount;
  • maximum age up to 70 years (for individual entrepreneurs);
  • period of business activity (usually at least 6 months).

Government Decree No. 1005

The requirements for a bank guarantee are specified in Decree of the Government of the Russian Federation dated November 8, 2013 No. 1005. The regulatory legal acts say what is necessary and what cannot be included in the text of the guarantee, what documents the customer needs to receive payment from the bank, and also specifies the rules for maintaining a register of guarantees and the form payment requirements.

A bank guarantee can be provided in electronic form under 44-FZ, as well as in paper form. Regardless of this in the text it is forbidden include the following:

  • the bank’s right to refuse to issue money to the customer if he does not provide notice of violation of conditions or termination of the contract (with the exception of cases when such notice is provided for in the contract);
  • requirement regarding the provision of a report to the guarantor on the performance of the contract;
  • documents that are not provided for by law.

Requirements for a bank that issued a bank guarantee under 44-FZ in 2019

Banks are subject to no less stringent requirements than the guarantee itself. They are specified in Decree of the Government of the Russian Federation dated April 12, 2018 No. 440. Only those banks that are approved by the Ministry of Finance can issue guarantees. The list is maintained on the department's website and is constantly updated.

By 2020, banks must:

  • have at least 300 million rubles. own funds as of the last reporting date;
  • have a rating higher than “BB-(RU)” according to the ACRA agency scale or higher than “ruBB-” according to the Expert RA agency scale.

In 2019, the register of bank guarantees remains closed. The participant can verify the authenticity of the document using an extract from the register, which the bank must provide within 1 business day. Read what to do if the guarantee is not in the register or the bank has prescribed requirements that are not in the documentation.

Sample requirement for bank guarantee 44-FZ

If the supplier violates the terms and does not fulfill the obligations, the customer applies to the bank for payment under the guarantee. You need to make a request and attach documents (for the list, see the Decree of the Government of the Russian Federation dated November 8, 2013 No. 1005):

  • calculation of the amount;
  • payment order;
  • document confirming the violation;
  • a document evidencing the authority of the customer's representative.

The request for a bank guarantee must indicate:

  • number and date of issue of the guarantee;
  • name of the guarantor;
  • name of the beneficiary;
  • name and TIN of the principal;
  • number of the contract or procurement notice;
  • specific violations;
  • the period for issuing funds under the guarantee;
  • details of funds transfer;
  • list of applications;
  • name of the authorized person of the customer.

The request and documents must be drawn up in writing on paper or electronically and sent to the bank within the agreed time frame.

Attached files

  • Sample bank guarantee.docx
  • Resolution No. 1005.docx
  • Resolution No. 440.docx

The Law on Public Procurement in some cases provides for the need for the supplier (contractor, performer) to provide a bank guarantee as security for the execution of the contract. But often customers use this security instrument for their own purposes in order to “weed out” unwanted applicants for concluding a contract. And for suppliers, a bank guarantee not accepted by the customer threatens with negative consequences in the form of inclusion in the register of unscrupulous suppliers, as well as financial losses. How to get the “correct” bank guarantee under 44-FZ? How to avoid inclusion in the register of unscrupulous suppliers if the guarantee is still not accepted?

In what cases is a bank guarantee required?

Federal Law 44 provides for two cases of providing a bank guarantee:

  • securing an application for participation in determining the supplier;
  • ensuring the execution of the contract.

In general, the requirements for a bank guarantee are identical in both cases, with rare exceptions. We'll talk about this below.

In what form should a bank guarantee be issued within the framework of 44-FZ?

The Government of the Russian Federation, in its Resolution No. 1005 of November 8, 2013, established that a bank guarantee within the framework of 44-FZ can be issued in the following form:

  • on paper (if the guarantee is issued on several sheets, then it must be numbered, stitched and sealed by the bank);
  • an electronic document signed with a non-qualified electronic signature.

Which bank should I contact to issue a guarantee under the public procurement law?

For government procurement, a bank guarantee from any bank is not suitable. Article 45 of the law on public procurement establishes that a guarantee in this case can only be obtained from a credit institution that is included in the list of the Ministry of Finance. On the official website of the financial department you can find a list of banks (http://minfin.ru/ru/perfomance/tax_relations/policy/bankwarranty/#) that can issue a bank guarantee. Check the website immediately before applying for a guarantee, as the list of credit institutions changes regularly.

What should be reflected in a bank guarantee under 44-FZ?

The bank guarantee must be irrevocable and include the following conditions:

  • the amount of the bank guarantee that will be paid to the customer by the bank in cases specified by law;
  • obligations of the supplier (contractor, performer), which will be secured by the credit institution under a bank guarantee;
  • the bank's obligation to pay a penalty to the customer in the amount of 0.1% of the amount that must be transferred by the credit institution for each day of delay;
  • a condition under which the bank’s obligation to pay a sum of money to the customer is considered fulfilled after the money arrives in the customer’s account;
  • a list of documents that must be provided by the customer to the bank in order to receive payment under a bank guarantee (the list is specified in Decree of the Government of the Russian Federation No. 1005 of November 8, 2013);
  • a suspensive condition, which provides for the need to sign an agreement on the provision of a bank guarantee for the supplier’s obligations (introduced in the case of a bank guarantee upon conclusion of the contract);
  • validity period of the bank guarantee. If the guarantee secures the application, then such period is at least 2 months from the deadline for filing applications; if the guarantee is related to obligations under the contract, the guarantee period must be at least 1 month longer than the contract period;
  • a condition regarding the customer’s right to undisputed debiting of a sum of money from the bank account if the credit institution has not voluntarily transferred the required amount within 5 working days at the customer’s request (if such a condition is specified in the procurement documentation);
  • a condition on the customer’s right to transfer the right to claim under a bank guarantee if the customer changes;
  • the condition that the bank itself must pay the costs of transferring money to the customer under a bank guarantee;
  • a condition on the customer’s right to submit a written demand to the bank for payment of money if the supplier fails to fulfill its obligations.

Also, regulations establish a number of conditions that are prohibited from being included in a bank guarantee:

  • the bank’s right not to pay under a bank guarantee if the customer does not send a notice to the supplier of his violation of the terms of the contract or of termination of the contract (exception - if such a condition is included in the procurement documentation);
  • the customer’s obligation to provide the bank with a report on the execution of the contract;
  • other documents that are not specified in Decree of the Government of the Russian Federation No. 1005, provided together with the request for payment of the amount under the bank guarantee;
  • a condition on the customer’s obligation to provide the bank with a judicial act regarding the supplier’s failure to fulfill obligations under the contract.

Note! No matter who you receive the bank guarantee from, be sure to independently check its availability in a special register. This register of bank guarantees can be found on the government procurement website (http://www.zakupki.gov.ru/epz/bankguarantee/extendedsearch/search.html).

For what reasons may a customer not accept a bank guarantee?

The law provides only three grounds when a customer can reject a provided bank guarantee:

  • the register of bank guarantees does not contain information about the presented guarantee;
  • the bank guarantee does not meet the requirements reflected in the law on public procurement (parts 2 and 3 of article 45);
  • the bank guarantee does not meet the requirements specified in the procurement documentation.

The Treasury of Russia, in a letter dated May 19, 2015 No. 07-04-05/09-319, indicated that the specified list of grounds for refusal is exhaustive. Therefore, the customer cannot reject the bank guarantee solely because it does not correspond to the form (sample) reflected in the procurement documentation.

Judicial practice on a bank guarantee within the framework of 44-FZ

The consequences of the customer’s failure to accept a bank guarantee can not only become a basis for refusal to conclude a contract, but also negatively affect the reputation of the supplier. After all, the law clearly states that a participant who does not provide a bank guarantee on time is considered to have evaded concluding a contract. And this is a direct path to the register of unscrupulous suppliers. But there are situations when procurement participants, even from such seemingly hopeless situations, manage to find a way out in court. Let's tell you more about them.

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

9 AAS 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 AAS dated 07/05/2016 in case No. 09AP-26750/2016.

Example 2. The court declared illegal the inclusion of a procurement participant in the register of unscrupulous suppliers (abbreviated as RNP), since the company took the necessary actions to replace the bank guarantee that did not comply with the law with a new one.

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

When issuing a bank guarantee directly from a bank or through an intermediary, remember that in any case, responsibility for the correctness of execution and its compliance with legal requirements lies, first of all, with the procurement participant.

Example 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.

1. Customers, as security for applications and execution of contracts, accept bank guarantees issued by banks that meet the requirements established by the Government of the Russian Federation.

1.1. When establishing requirements for banks, the Government of the Russian Federation establishes requirements for the size of the bank's own funds (capital) and the level of credit rating assigned to a Russian credit organization by one or more credit rating agencies, information about which is included by the Central Bank of the Russian Federation in the register of credit rating agencies, according to national rating scale for the Russian Federation in accordance with the methodology, the compliance of which with the requirements of Federal Law dated July 13, 2015 N 222-FZ "On the activities of credit rating agencies in the Russian Federation, on amending Article 76.1 of the Federal Law "On the Central Bank of the Russian Federation (Bank) Russia)" and the recognition as invalid of certain provisions of legislative acts of the Russian Federation" was confirmed by the Central Bank of the Russian Federation.

1.2. The list of banks that meet the established requirements is maintained by the federal executive body for regulating the contract system in the field of procurement based on information received from the Central Bank of the Russian Federation, and is subject to posting on the official website of the federal executive body for regulating the contract system in the field of procurement in the information telecommunications network "Internet". If circumstances are identified indicating that a bank not included in the list meets the established requirements or that a bank included in the list does not comply with the established requirements, such information is sent by the Central Bank of the Russian Federation to the federal executive body for regulating the contract system in the field of procurement within five days from the date of identification of these circumstances to make appropriate changes to the list.

2. The 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 established by Part 15 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 this Federal Law;

2) obligations of the principal, the proper fulfillment of which is ensured 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 guarantor’s obligations under the bank guarantee is the actual receipt of funds into the account on which, in accordance with the legislation of the Russian Federation, transactions with funds received by the customer are recorded;

5) the validity period of the bank guarantee, taking into account the requirements of the articles and 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 at its conclusion, in the case of a bank guarantee being provided as security for the execution 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.

3. In the case provided for by the notice of procurement, procurement documentation, draft contract concluded with a single supplier (contractor, performer), the bank guarantee includes a condition on the customer’s right to indisputably write off funds from the guarantor’s account if the guarantor fails to do so on time the customer’s demand for payment of a sum of money under a bank guarantee, sent before the expiration of the bank guarantee, has not been fulfilled for more than five working days.

4. It is prohibited to include in the terms of a bank guarantee 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.

5. 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.

6. The grounds for refusal to accept a bank guarantee by the customer are:

1) lack of information about the bank guarantee in the registers of bank guarantees provided for in this article;

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 determining the supplier (contractor, performer), procurement documentation, draft contract, which is concluded with a single supplier (contractor, performer).

7. In case of refusal to accept a bank guarantee, the customer, within the period established by part 5 of this article, informs the person who provided the bank guarantee in writing or in the form of an electronic document, indicating the reasons that served as the basis for the refusal.

8. A bank guarantee provided by a procurement participant as security for an application for participation in the procurement, if such a method of securing applications is applicable in accordance with this Federal Law, or as security for the execution of a contract, information about it and the documents provided for in Part 9 of this article must be included in the register of bank guarantees located in the unified information system, with the exception of bank guarantees specified in part 8.1 of this article. 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.

8.1. The information provided for in Part 9 of this article about bank guarantees provided as security for applications and execution of contracts is not posted on the official website, and when purchasing goods, works, services, information about which constitutes a state secret, is included in the closed register of bank guarantees, which is not posted in the unified information system and on the official website.

8.2. Additional requirements for a bank guarantee used for the purposes of this Federal Law, the procedure for maintaining and placing in the unified information system the register of bank guarantees, the procedure for forming and maintaining a closed register of bank guarantees, including the inclusion of information in it, the procedure and deadlines for providing extracts from it, The form of the request for payment of a sum of money under a bank guarantee is established by the Government of the Russian Federation.

9. The following information and documents are included in the register of bank guarantees and the closed register of bank guarantees:

1) name, location of the bank that is the guarantor, taxpayer identification number or, in accordance with the legislation of a foreign state, an analogue of the taxpayer identification number;

2) name, location of the supplier (contractor, performer) who is the principal, taxpayer identification number or, in accordance with the legislation of a foreign state, an analogue of the taxpayer identification number;

3) the amount of money specified in the bank guarantee and payable by the guarantor in the event of failure by the procurement participant to comply with the requirements of this Federal Law in established cases;

4) validity period of the bank guarantee;

5) a copy of the bank guarantee, with the exception of a bank guarantee, information about which is subject to inclusion in the closed register of bank guarantees in accordance with Part 8.1 of this article;

6) other information and documents, the list of which is established by the Government of the Russian Federation.

11. The bank that issued the bank guarantee, no later than one business day following the date of its issuance, or the day of making changes to the terms of the bank guarantee, includes the information and documents specified in part 9 of this article in the register of bank guarantees or sends it within the specified time frame in accordance with the procedure for the formation and maintenance of a closed register of bank guarantees, information for inclusion in the closed register of bank guarantees.

The provisions of Article 45 of Law No. 44-FZ are used in the following articles:
  • Providing applications for participation in competitions and auctions
    4. A bank guarantee issued to a procurement participant by a bank for the purpose of securing an application for participation in a tender or auction must comply with the requirements of Article 45 of this Federal Law. The validity period of the bank guarantee provided as security for the application must be at least two months from the deadline for submitting applications.
  • Procedure for submitting applications for participation in an open competition
    5) documents confirming the deposit of security for an application for participation in an open competition (payment order confirming the transfer of funds as security for an application for participation in an open competition, or a copy of this payment order or a bank guarantee that meets the requirements of Article 45 of this Federal Law), in if the customer, in accordance with this Federal Law, has established a requirement to secure an application for participation in an open tender. The specified documents are not submitted by state and municipal institutions;
  • Enforcing the contract
    3. Execution of the contract can be ensured by the provision of a bank guarantee issued by the bank and meeting the requirements of Article 45 of this Federal Law, or by depositing funds into the account specified by the customer, which, in accordance with the legislation of the Russian Federation, records transactions with funds received by the customer. The method of ensuring the execution of the contract is determined independently by the procurement participant with whom the contract is concluded. The validity period of the bank guarantee must exceed the validity period of the contract by at least one month.
  • Features of planning and implementation of procurement on the territory of a foreign state to support the activities of customers operating on the territory of a foreign state
    1) not be guided by the provisions of Articles 23, 28, 30, 34 - 37, 41, 44, 45, 103 and parts 4 - 6 of Article 104 of this Federal Law;
  • Final provisions
    31. Until March 31, 2015, the requirements of Article 45 of this Federal Law regarding the inclusion of a bank guarantee, as well as information and documents provided for in Part 9 of this article, in the register of bank guarantees do not apply to bank guarantees provided as security for applications for participation in the determination supplier (contractor, performer) in a closed way, used in procurement, information about which constitutes a state secret, or as security for the execution of a contract containing information that constitutes a state secret. Customers do not have the right to refuse to accept such bank guarantees on the grounds specified in paragraph 1 of part 6 of article 45 of this Federal Law.
  • The procedure for the entry into force of this Federal Law
    1.1. Clause 1 of Part 6, Parts 8 and 11 of Article 45 of this Federal Law come into force on March 31, 2014.

A convenient tool to ensure the fulfillment of obligations is a bank guarantee. This term is understood as a document obliging the bank (guarantor) to pay the creditor (beneficiary) a certain amount in accordance with the agreement in the event that the principal has not fulfilled his obligations towards the creditor in due time. Simply put, if the supplier does not fulfill its obligations to the customer, the bank compensates for the financial side of the agreement, after which the supplier remains in debt to the bank, and not to the customer. The diagram shows such an interaction:

Most often, the requirement to have such insurance is a mandatory condition for everyone applying for participation in government procurement. Even in its absence, actions related to obtaining bank collateral are fully justified in case of unforeseen risks, being less expensive than obtaining a commercial loan. There are a number of requirements for bank guarantees, as well as for the financial institutions to which they are provided. The main requirements are contained in articles of Federal Law No. 44 “On the contract system” and in Federal Law No. 223 “On procurement of state-owned companies”.

Bank guarantee under 44-FZ

To apply for a bank guarantee, hereinafter referred to as BG, you need to select a bank from the list posted on in order to submit an application. The next step will be to provide the financial institution with the necessary documentation, the list of which may vary depending on the requirements of the bank itself, however, there are a number of mandatory documents that will be required in any case at the stage of consideration of the application. Mandatory documents that will need to be provided to the financial institution:

  1. Application for a monetary guarantee (according to the institution’s form).
  2. Information about the applicant.
  3. Copies of constituent documentation.
  4. Copies of documents that can confirm the authority of the person submitting the application.
  5. Accounting reports with transcripts.
  6. A draft contract that requires a guarantee.

Important! Before submitting an application, you must carefully read the conditions under which a particular bank provides BG. For example, many financial institutions, among other conditions, require that the applicant have a current account at the place of application.

An example of what this document looks like:

Compliance with 44-FZ

It should be noted that a single sample form is not enshrined in law, but the content of the document is regulated by the articles of the current draft laws 44-FZ and the Civil Code of the Russian Federation. The bank guarantee must be properly verified. The document must meet the following criteria:

  • mandatory placement in the unified list of bank guarantees and on the official government procurement portal;
  • is irrevocable;
  • the BG contains complete information about the amount in accordance with Parts 2, 3, Article 45 of Federal Law No. 44;
  • there should not be requirements for the provision of judicial acts confirming the improper fulfillment by the principal of his obligations;
  • the validity period of the BG must be at least one month longer than the validity period of the main contract.

Important! Based on clause 11, article 45, Federal Law No. 44, the bank is obliged to place information in the register of the unified information system before the expiration of one business day from the date of issuance of the guarantee.

Interface of the procurement portal, where you can view guarantees in a single register:

Bank requirements

Before applying for the required document, you should check the bank itself, which is ready to act as a guarantor. An institution willing to provide BG must meet the following requirements:

  • must be included in the list of banks of the Ministry of Finance of the Russian Federation;
  • the financial institution operates on the basis of a license issued by the Central Bank for a period of at least 5 years;
  • the amount of equity capital is over 1 billion rubles;
  • the requirements of Federal Law No. 86 dated July 10, 2002 were observed for all reporting dates of the last six months;
  • The Central Bank did not put forward demands regarding the stabilization of the financial situation in a particular bank.

Single register

All BGs, with the exception of contracts issued as security containing information classified as state secrets, are required to be included in the general register of the unified information system. The latter are included in a separate closed list, which is not used for placement in a unified information system. Control over the maintenance of the register, as well as over actions to place the contents of the register in a unified information system, is carried out by the Federal Treasury. The registers themselves, both open and closed, must include the following information:

  • name, TIN, legal address of the guarantor bank;
  • name, tax identification number, legal address of the principal (supplier, contractor);
  • the amount of money declared in the BG, which the guarantor must pay in accordance with Articles 44-FZ in the event that the procurement participant fails to fulfill its obligations;
  • validity period of the document;
  • a copy of the document itself, except for the BG entered into a closed register.

BG size

The BG amount should be 5-30% of the original cost of the purchase lot. If the value of the lot is over 50 million rubles, the cost of material support for the contract in such cases may be equal to 10-30% of the total initial price of the entire contract as a whole, but not less than the cost of the advance payment. In cases where the value of the advance is higher than 30% of the value of the entire contract, the size of the BG will be equal to the amount of the advance.

Undisputed write-off

Articles 44-FZ give the customer the right to undisputed write-off of funds due under the guarantee upon the occurrence of certain conditions. Undisputed write-off should be understood as the possibility of withdrawal of funds from the balance sheet of the guarantor institution by the beneficiary for his own benefit without prior application or notification. Indisputable write-off is possible if there are several good reasons:

  • according to a court decision;
  • if there is a corresponding clause in the contract;
  • in cases permissible under current legislation.

Guarantee provision within the framework of 223-FZ

Articles of Federal Law No. 223 of June 18, 0211 “On the procurement of goods, works, services by certain types of legal entities” are distinguished by loyalty in comparison with 44-FZ. There are several fundamental distinctive differences that are characteristic of BG within the framework of 223-FZ:

  1. In accordance with Articles 223-FZ, a BG that is not included in the unified register is subject to acceptance.
  2. According to 223-FZ, it is not necessary for the Guarantor institution itself to be on the official list of the Ministry of Finance of the Russian Federation.
  3. If under 44-FZ there is an obligation to provide 10-30% of the original price, provided that the contract value is over 50 million rubles, then under 223-FZ there is no such need.

Options for contract insurance under 223-FZ

There are three types of BG within the framework of 223-FZ:

  1. Ensuring participation in the tender.
  2. Ensuring advance payment.
  3. Ensuring compliance with the terms of the contract itself.

Requirements under 223-FZ

Despite their comparative mildness, the forms of BG according to 223-FZ are subject to a number of unconditional requirements:

  • mandatory irrevocability;
  • mandatory validity period;
  • the amount that the guarantor must pay to the customer if the principal fails to fulfill the terms of the contract must be determined;
  • the obligations of the procurement participant must be contained in full;
  • the period during which the customer has the right to approve or reject the BG after receipt of the application must be indicated.

The difference between the forms of bank guarantees under 44-FZ and 223-FZ is described in the video:

You can download the full list of banks that comply with the requirements of the law, namely clause 3, article 74.1 of the Tax Code of the Russian Federation, at the link:

You can view information about the bank guarantee in a unified register on the website