Advance payment guarantee. Bank guarantee for return of advance payment Bank guarantee for return of advance payment what

The advance payment guarantee is a guarantee of the return of the advance payment amount and is issued by a financial institution for the amount of the advance planned for transfer by the state, municipal or commercial customer in accordance with the terms of the contract.
The purpose of this bank guarantee (BG) is to ensure that the advance is used for a specific purpose and the possibility of returning the advance payment in the event that a violation of the terms of the contract occurs.

Benefits obtained from purchasing this bank guarantee

The advance guarantee is recognized as a reliable financial instrument and has undeniable advantages:

significant savings;
making transactions on favorable terms, always achieving positive results from cooperation with customers and, as a result, receiving interesting and profitable contracts, the implementation of which has a positive impact on the contractor’s business;
in the event that the winner of the tender fails to fulfill its obligations under the contract, the financial institution returns the advance payment to the customer, thereby compensating for his business losses (but it is not recommended to neglect one’s responsibilities, because after such a case occurs, the bank will take on the debtor-executor with a demand to return the funds to him).

Operating principle

Scheme for obtaining and operating this financial instrument:

To begin with, the contractor (supplier) enters into an agreement with the customer (buyer) for the supply of goods, services or performance of work. For example, for the supply of spare parts for cars. The concluded agreement provides for the form of advance payment for payment. The customer agrees to make an advance payment after the company supplying services/goods or offering work for execution provides him with a refund policy for the advance payment. Having reached an agreement, both parties come to a decision, based on the results of which an additional document is drawn up. agreement in the form of an annex to the contract. This agreement stipulates the use of BG. After which an invoice is issued for advance payment.
Now the contract executor is faced with the task of finding a company that will help him in issuing the BG document.
After contacting the specialists of the found company, the following happens: upon issuance of the BG document, the financial institution, which becomes a guarantor, opens a guarantee in favor of the customer. The customer's representative, having provided the contractor with a power of attorney and, having signed the BG Acceptance and Transfer Certificate, takes away the original document.
On the day when the contractor transfers the original, the customer makes a payment in his favor of the amount agreed upon in the BG.
If the contractor fails to fulfill its obligations and refuses to return the advance payment to the customer, the latter makes a claim under the guarantee and other documents required by its terms to the guarantor. The demand states that the contractor has neglected his obligations under the contract and does not agree to return the advance payment, therefore the customer demands that the guarantor return the advance payment under the BG.
The financial institution acting as a guarantor verifies this claim and the accompanying documents, if any. If the received documents comply with the BG conditions, the financial institution makes a payment in favor of the customer based on them.
Later, the financial institution and the executor agree on the terms of returning the amount paid by the guarantor to the customer to his address on optimal terms for the executor, possibly with installments.

The client’s desire is the law for us, or why we are more profitable

Our company gives every client the opportunity to:

feel confident that a municipal, commercial or government customer will most likely accept the guarantee;
be confident that any transaction will go smoothly;
receive a lucrative contract that brings not only huge income, but an impetus to a new level in business development;
save your time, that is, get what you need to meet your obligations in a short time;
competent execution of the document of this form of irrevocable guarantee.

Duration of the advance guarantee

The bank guarantee for advance payment begins to be valid immediately after it is issued. The validity period of this document is equal to the validity period of the contract for the execution of a municipal, state or commercial order.

Application of the advance guarantee and its amount

So, in what cases are guarantees for the return of the advance payment required: a guarantee for the payment of an advance payment is applied when the terms of the contract provide for the receipt of an advance payment. That is, before the customer makes an advance, he requires the contractor to provide this type of guarantee.
The size of this financial instrument is up to 30 percent of the size of the state, commercial or municipal contract.

Effectiveness of the advance payment guarantee

This instrument involves reducing the guarantee amount by the required amount as the contract is fulfilled. That is, the financial organization acting as a guarantor monitors the receipt of certain documents indicating that the contractor has fulfilled his obligations to carry out specific work, services or deliveries to the customer (beneficiary). Upon receipt of the corresponding document, the guarantor reduces the amount of the advance guarantee by the required amount.

Why outside help is important

You are guaranteed the most favorable conditions for receiving any financial product if you call us. After all, we have been working in the financial sector for many years and have only good reviews from all clients who are always satisfied with cooperation with our company.
It is only possible to benefit from the execution of contracts and achieve the main results in the form of business development in a successful way only with us.
In addition, we offer the cost of obtaining a service that compares favorably with the prices of companies competing with us. We have earned the trust of many clients and continue to work in the same spirit, since we are only interested in fruitful and mutually beneficial relationships.

A supply or purchase agreement, despite the fact that it contains a clause regarding partial prepayment, is somewhat risky for the customer.

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This is due to the fact that the likelihood that the contractor will not fulfill the promised conditions is high. However, these agreements do not perform a protective function.

This state of affairs has popularized the use of bank guarantees, which legitimately monitor the relations between the parties to the transaction, taking on the role of a guarantor of the fulfillment of obligations.

What it is

A bank guarantee is a unique type of guarantee. The agreement is fully controlled by the current Civil Code of the Russian Federation.

Not all organizations can act as guarantors, but only banks and other financial institutions. The only requirement that the state places on guarantors is that they have a license from the Central Bank of the Russian Federation.

Today, in accordance with established rules, it is rational to note the following types of guarantees:

payment;
guaranteeing fulfillment of obligations;
performance guarantees;
refunds;
tender.

Bank guarantee for return of advance payment

A bank guarantee for the return of an advance payment is a kind of agreement that the bank, acting as a guarantor of the transaction, issues for a product, service, or type of robot in accordance with the terms of the contract.

According to the Civil Code of the Russian Federation, the amount of the advance payment should not exceed 30% of the contract value.

The main function of a bank guarantee is to ensure the return of the advance in cases where the contractor has not fulfilled its obligations to the customer.

In addition, the advance guarantee implies the possibility of reducing the amount as the terms of the contract are fulfilled. In this case, the banking structure carefully monitors compliance with the terms of the agreement, that is, the execution of certain works, checking documentary evidence of compliance with the terms of the agreement.

In order to conclude a bank guarantee, you must contact the banking structure. The contractor must provide security, which can be securities, real estate and other objects.

Then, the guarantor bank and the principal draw up the terms of the bank guarantee. The document must contain the following points:

Clarification of the type of bank guarantee.
Information about the customer, namely his details and name.
The main terms of the agreement, which became the basis for drawing up a bank guarantee.
Clarifying the format in which the agreement was drawn up, for example, in writing.
Clarification of the form of the agreement, we are talking about the classic form or the presence of special conditions proposed by the customer.
The amount provided by the bank if necessary.
Clarification of the currency of the provided banking organization.
Indication of the date that became the beginning of the transaction.
Validity period of the signed agreement.

When the agreement comes into force

The question of when a bank guarantee comes into force is relevant today, since this point is of fundamental importance when signing and complying with the terms of the contract.

General rules regulate that a bank guarantee, first of all, comes into force from the day the agreement is issued. But the procedure is characterized by some specifics - the entry into force of the guarantee may not coincide with the actual date of signing the agreement.

Such situations arise when a well-drafted bank guarantee was not transferred to the customer. This indicates that the guarantor did not fully express its obligations, and accordingly, the fact of the transaction was not confirmed. Accordingly, the bank guarantee comes into force only after the agreement is transferred to the customer.

There are also exceptions, if any were provided for by the terms of the contract. In this case we are talking about the principles of freedom of contract. In accordance with these rules, the banking structure acting as a guarantor of the transaction can, together with the contractor, set any start date for the agreement.

Video: Profitable and without intermediaries

Validity periods

The validity period of a bank guarantee is fully regulated by the Civil Code of the Russian Federation. The validity period of the guarantee is the time period specified in the document during which the beneficiary has the right to demand monetary compensation from the banking structure acting as the guarantor.

According to the established rules, a bank guarantee can be canceled only if the customer does not have any claims against the principal of the transaction within the validity period of the guarantee.

At the end of the agreement, the customer must record in writing the fact of compliance with all the terms of the agreement, for example, timely deliveries, completed work, etc.

It is worth noting that the law also provides for other factors that affect the expiration of the warranty.

Among them are the following:

full payment of the amount specified in the guarantee;
return of the agreement by the customer and waiver of rights by the customer;
expiration of the agreement.

Requests for payment of a bank guarantee

In cases where the principal has violated the terms of the agreement specified in the agreement, the beneficiary has the right to demand the advance payment issued to the customer.

If he ignores the request, then the customer has a legal opportunity to file a claim with the bank acting as the guarantor of the transaction.

To implement the request, the beneficiary must submit a claim.

The procedure is characterized by some features, including:

Argumentation of claims. When filing a claim, the beneficiary must document the fact of violation by the contractor of the terms of the agreement.
Deadlines. The Civil Code of the Russian Federation stipulates that the customer has the legal opportunity to submit a claim only before the end of the validity period of the bank guarantee. Otherwise, his request will not be granted.
Possibility of resubmitting a claim. Many beneficiaries mistakenly believe that a refusal received from a financial institution means the end of the agreement. In accordance with established standards, the customer has every right to repeatedly make repeated demands for the return of the advance payment.

The legislation established a “reasonable time frame” allotted for consideration of a request from a customer. As practice shows, on average the verification procedure takes no more than 5 days.

During this period, if the request has been documented, the banking institution will return the funds to the beneficiary.

Advantages

A bank guarantee for the return of an advance payment is one of the most reliable financial instruments that allows you to legally regulate the relationship between the parties to the contract.

It is worth noting that a bank guarantee for the return of the advance payment is beneficial to all parties to the agreement.

Among the advantages it has are the following:

Reliability. The agreement allows you to insure the customer against failure to fulfill obligations on the part of the contractor. In case of violation of obligations, the customer will be able to compensate for his losses in monetary terms.
Additional partners. With the help of a guarantee agreement, customers will be able to prove their reliability, which will open access to cooperation with large state-owned enterprises, as well as the opportunity to participate in lucrative tenders.
Minimal time costs. In case of violation of the terms of the agreement, the parties do not need to waste time and money on legal proceedings. The banking structure, acting as a guarantor of the transaction, will resolve issues of this type.

To summarize, it can be noted that a bank guarantee for the return of an advance payment is an ideal solution for business people. A well-drafted agreement will ensure the creation of favorable terms of cooperation for all participants in the business agreement.

A bank guarantee for the return of an advance payment is a common type of service provided by credit institutions to insure prepayment under a contract. It has its own advantages and principle of operation.

What is the guarantee

The financial institution undertakes to guarantee the return of funds paid in the form of an advance under a contract concluded between the principal (applicant) and the beneficiary (beneficiary).

An advance payment is the amount that, under the terms of the contract, a customer of any category plans to transfer:

municipal;
commercial.

In order to insure the transferred amount, the principal asks the bank to issue an advance guarantee, that is, APG (an abbreviation of the official term in English - “The advance payment guarantee”).

This document can serve as security for the risks of transferring an advance payment if the seller has not fulfilled the obligations of the contract:

did not deliver the products;
did not provide services;
didn't do the work.

A bank guarantee of an advance payment is issued for the period during which the terms of the contract are met (until the complete completion of work, services or delivery) plus another month (or more) to identify a possible defect.

APG may not exceed 30% of the total contract amount. As the conditions are met, the insured amount may decrease, which usually happens automatically. Such details are discussed in detail and clearly in the contract.

Thus, the guarantor bank performs the following functions:

issues a guarantee;
records the receipt of documents indicating the fulfillment of the terms of the contract;
monitors the transaction process;
initiates a reduction in the prepayment insurance amount by the agreed amounts.

The bank guarantee comes into force on the day of its issue.

Advantages of APG registration

A bank guarantee for the return of an advance payment is a reliable financial instrument that has undeniable advantages:

Prepayment insurance in case of bankruptcy of the performer.
Saving money and time that may be spent on legal proceedings.
Positive results on concluded contracts.
Fulfillment of all obligations on both sides.
Obtaining favorable conditions for commercial and other types of transactions in the future.

The financial institution undertakes to cover risks and resolve conflict situations. It pays the entire amount of the advance in the event of violation of any obligations by the supplier or the winning bidder. As a result, the customer is compensated for losses that could cause serious damage to his business.

If situations of neglect of the terms of the contract arise, the guarantor bank, after paying the advance to the customer, recovers the amount from the debtor in full plus additional funds to cover legal costs and fines. Therefore, violating the terms of a contract that has an advance payment guarantee is extremely unprofitable for the contractor. As a result, the transaction is insured with maximum efficiency.

Bank payment guarantee: Video

Procedure and principle of operation

The procedure for registration, operation and completion of a transaction using APG is followed according to the following standard scheme:

Concluding an agreement between the principal and the beneficiary and calculating the required advance.
Conclusion of an additional agreement on the use of BG for the return of prepayment.
Applying to the bank to obtain an advance payment guarantee.
Transfer of advance payment by the customer to the account of the contractor.
Confirmation of fulfillment of the terms of the contract and transfer of remaining funds.

When the terms of the contract are negotiated and the need for an advance payment is identified, the customer has the right to demand risk security in case the contractor refuses to provide services or goods. That is, the customer agrees to transfer funds to the contractor’s account only after presenting the BG for a refund of the advance.

Having reached such an agreement and formalized it as an addition to the main agreement, the contractor searches for a credit institution that can issue an APG (or contacts his bank where his accounts are serviced). The financial institution checks the solvency of the contractor, after which it agrees to act as its guarantor.

When the bank guarantee for the advance payment is ready, its original is transferred by the principal to the beneficiary. This fact must be recorded in the transfer and acceptance certificate of the BG. The customer's representative who endorses the act is required to provide a power of attorney and documents confirming his authority. On the day when the guarantee is transferred, the customer transfers the advance amount according to the invoice issued by the contractor.

Expiration of the advance payment guarantee

The action of the BG is completely canceled only on the basis of a statement from the customer that there are no claims against the contractor. At the end of the contract, the customer must confirm that all conditions have been met. He issues a written statement that the contractor has completed the work, services or delivery of goods in full, after which the guarantor is relieved of the obligation to ensure the return of the advance.

If the contractor has violated his obligations and has not performed work, services or delivered goods and refuses to return the advance payment made by the recipient, the customer has the right to make claims against the guarantor bank. The company sends him a demand statement, on the basis of which the financial institution conducts an inspection to determine whether the contractor has violated its obligations.

If the received data and documentary support confirm the fact of the contractor’s dishonest attitude towards the contract, the bank returns the advance amount to the customer, recorded in the bank payment guarantee, and then proceeds to recover the loss from the principal, that is, the guilty party.

Guarantee for fulfillment of obligations, including state and municipal contract agreements. The selection of the contractor for any government order is carried out through a bidding system. The winning bidder can take advantage of a bank guarantee. This is a guarantee to the customer that in the event of force majeure, when the contractor is unable to fulfill his obligations to the beneficiary, the bank assumes this responsibility. He pays the amount agreed upon in the contract to the customer to cover various costs.
Tender guarantee. This guarantee is opened at the request of the tender organizer and guarantees that there is no risk that: the tender participant will withdraw the application for participation after the deadline for its submission; the winner of the tender will change his plan and will not want to formalize the contract for the won tender or will perform the work not in accordance with the contract. With a tender guarantee, the customer eliminates risks. At the same time, unserious companies are automatically eliminated, and the fact of high-quality execution of the tender by the contractor is ensured.
Customs guarantee. This is a written commitment from the bank to the customs authorities that the bank guarantees that the company will pay customs duties. This guarantee allows the company to defer the payment of customs duties for up to one year. Only banks that are included in the special register have the right to issue this guarantee.
Advance payment refund guarantee. After the customer enters into a contract for the sale of services or goods with your company, he can pay an advance. The advance amount is no more than 30% of the contract amount. A document guaranteeing the return of the advance to your customer is this guarantee. In this way, the customer eliminates the risk of the contractor distributing the advance for other purposes. If the advance is not spent for its intended purpose, the bank will compensate him for these monetary resources.
Guarantee in favor of tax authorities. This is a written document that guarantees the Federal Tax Service the payment of payments by the company to the Federal Tax Service. In this case, the guarantee of payment of VAT in favor of the Federal Tax Service allows the taxpayer to return the amount of VAT declared for reimbursement in the tax return. This will happen before the end of the desk tax audit. At the same time, refundable funds are put into circulation and begin to work much earlier than if this entire procedure took place without this type of guarantee. Not all banks can issue this guarantee, in accordance with paragraph 4 of Article 176.1 of the Tax Code of the Russian Federation.

A bank guarantee is a documented guarantee from the bank to pay for work or services to your partners (beneficiaries), in the event that your company (principal) for objective reasons fails to fulfill its promises to the beneficiary.

A bank guarantee acts as a protector of the company's status. She is a guarantor for the partner on the basis of a regulating tripartite relationship. The guarantor bank, for a fixed fee, guarantees the fulfillment of the terms of the concluded agreement to the principal. Not all banks have permission to provide this service. You can get acquainted with the list of guarantor banks on the website of the Ministry of Finance of the Russian Federation.

Entrepreneurs often do not see the difference between a tender loan and a bank guarantee. A loan is a completed lending procedure, and a bank guarantee is a guarantee document confirming the solvency of a legal entity.

Many small and medium-level entrepreneurs cannot withdraw funds from circulation, as this may affect the quality of their business activities. Funds to secure participation in the auction can be obtained as a loan from a bank or microfinance company.

A tender loan for a contract is also beneficial to auction participants, as well as to its organizers, that is, direct customers. The largest number of participants in the auction offers customers a greater choice among performing companies.

The tender loan is issued for a short period, no more than 90 days. This type of lending provides for an average rate of 17 to 20% upon completion of the auction under the terms of the agreement for this loan. It must be repaid immediately after the end of the auction (2-3 days).

Any company can apply for a tender loan or tender loan to participate in tenders. The main difference between these financial services is the lender.

Tender loans are issued only by banks. It takes 2-3 weeks to review, approve and issue this loan. The tender loan percentage is much lower than the tender loan percentage. At the same time, not every legal entity can receive a tender loan from a bank. The bank takes the solvency of each client seriously, checks the credit history and financial capabilities of the borrower.

A tender loan is issued within 1-3 days by microfinance organizations and investment funds.

Getting a tender loan is much easier than a loan, but the interest rates are much higher. Solvency and credit history are not checked, and literally every applicant can receive a loan.

Not all requests for a bank guarantee are successful. The bank thoroughly reviews the documents provided by the customer. And even within one day it can carry out an analysis and make a decision in favor or not of issuing a bank guarantee.

Each bank independently selects methods for verifying the data provided to receive a bank guarantee. All technologies for checking the solvency and reliability of the applicant’s information have been tested many times, and it will not be difficult for the bank to find a catch in the provided reporting documentation.

1) Falsity of the data submitted by the applicant

To obtain a bank guarantee, the applicant provides the bank with a folder of documents listed above: accounting and financial reports for a certain period, information about the organization, constituent documents. The bank considers not only the information provided by the applicant and data about the owner of the company, as well as his credit history. As well as data on the participation of an individual in companies of this type and on the outcome of this project. In case of unreliability, the bank refuses the applicant.

If the bank identifies false information intentionally distorted by the applicant, the bank refuses to issue a guarantee. Even errors of a formal nature are grounds for refusal.

Identified inaccuracies, for example, in calculations or indicators, also play against the applicant. In this case, the bank may offer to issue a guarantee with additional security in the form of a pledge or deposit.

The main agreement between the two parties (customer and contractor) is also thoroughly studied by the bank, since there may also be inconsistencies in it that cannot ensure this contract. Example: the performing party does not have a license for the declared activity or the license expires. It must also fully comply with the requirements specified in the tender conditions.

2) Discrepancies between financial indicators and bank requirements

When analyzing financial documentation, the bank correlates the company's main assets with the amount for which the bank guarantee is taken. In the case where a company greatly exaggerates its liability in relation to its assets, the bank will most likely refuse to provide a guarantee, since this is a direct risk for the bank itself.

The image of the company, its reputation in the market of its field of activity is also important. If a company is developing steadily from year to year, then it will not risk its funds by signing contracts that exceed its capabilities. Thoughtful planning of the company's activities gives it a chance to receive a bank guarantee.

3) Failure to meet bank requirements for obtaining a guarantee

If the company is young, has been operating for less than a year and has not proven itself in various market situations, the bank will refuse to issue a guarantee. In order to identify the real goals of the applicant company, an analysis of its activities over a longer period is required.

The absence of a complete package of necessary documentation is a reason for bank refusal. The absence of additional financial resources or property that would guarantee the bank the solvency of the applicant significantly reduces the chances of receiving a guarantee.

Banks very strictly evaluate the current state of affairs of the applicant company, since the position of any, even the most reliable company, in market conditions can quickly change, banks are moving towards minimizing risks. If the documents are contradictory or incorrectly executed, this is a reason for refusing to receive a bank guarantee.

Provision of goods, works and services to meet state and municipal needs.

Provision of goods, works and services to provide a certain type of legal entity.

Providing goods, works and services to the Fund for Assistance and Reform of Housing and Communal Services.

Tender guarantee (guarantee to secure the bid)

Clause 1 of Art. 44 44-FZ states that parties to a tender for a government contract are required to provide security for their application. One type of security for an application is a tender guarantee (in the case where the auction is not held in the form of an electronic auction, the application can only be secured with real money, which is transferred to the customer’s account). This application security provides for the material investments of the bidder, so that he subsequently cannot refuse to sign the contract if he wins the tender.

A guarantee to ensure the performance of a contract.

The need to provide security for the execution of a state contract is determined by clause 1 of Art. 96 44-FZ., paragraph 3 of the same article allows the use of a bank guarantee for security. This guarantee protects the customer from unscrupulous performers. If the contract is partially executed, of poor quality, or the contractor generally refuses to provide goods and services under the current contract, the bank will reimburse the funds under the guarantee to the injured party - the government customer.

Bank guarantee for the return of the advance.

In accordance with Art. 96 clause 6 44-FZ, if the maximum (initial) price of the contract exceeds 50 million rubles, then the customer must establish in the tender documentation a requirement to ensure the execution of the contract in the amount of 10–30% of its initial cost. Moreover, if the contract provides for the payment of an advance, then the security cannot be less than the amount of this advance. If the advance is more than 30% of the initial price of the government contract, then the amount of security for the performance of the contract is set at the amount of the advance.

The Civil Code specifies a number of conditions that a bank guarantee must meet. These are: the name of the guarantor, the validity period of the guarantee, its amount, the addressee of the issue, the purpose of the issue, the conditions for making the payment.

According to 44-FZ, credit companies that are not included in the list of the Ministry of Finance of the Russian Federation do not have the right to issue such a guarantee. The requirements for banks included in the list are specified in clause 3 of Art. 74.1 NK. The current list can be found at any time on the official website of the Ministry of Finance:
//www.minfin.ru/ru/perfomance/tax_relations/policy/bankwarranty/.

If a bank guarantee is issued, this event is entered into the register of guarantees: http://zakupki.gov.ru/epz/bankguarantee/quicksearc

If the guarantee is not included in the register, it cannot be implemented for participation in the tender and signing of contracts under 44-FZ.

The guarantee intended to secure the application is valid for at least 2 months after the deadline for accepting applications for the tender, this is stated in clause 3 of Art. 44 44-FZ.

A bank guarantee for the performance of a contract is valid for the entire contract period plus one month after completion of the contract (clause 3, article 96).

The bank guarantee for the return of the advance is valid for the entire duration of the contract and plus one month after completion of the contract.

The beginning of the guarantee is considered to be the time of its issue by the lending organization. Sometimes the date of issue and start of the warranty are different, in which case, the start time is indicated in the warranty itself.

The amount of security for the auction application and the implementation of the contract is always specified in the tender documents. It is installed by the customer, who is based on the provisions of 44-FZ:

According to Art. 44 clause 14, the tender guarantee should be calculated at 0.5–5% of the initial cost of the government contract. If the price of a government contract is no more than one million rubles, then 1%. The maximum ceiling for tender guarantee coverage is reduced from 5 to 2%. In paragraph 15 of Art. 44 indicates those situations where these calculations are applicable.

The amount of the guarantee to ensure the execution of the contract must be calculated in the range from 5 to 30% of the original price of the government contract. With an initial cost of over 50 million rubles. - from 10 to 30%.

If an advance payment is required under a tender agreement, then the guarantee to ensure the implementation of this contract is not lower than the amount of the advance payment. If an auction participant significantly (by more than ¼) reduces the initial price, then the anti-dumping measures specified in Art. 37. In this case, the amount of the bank guarantee under the contract increases by 1.5 times. Sometimes there may not be an increase in the guarantee; in Art. 37. All cases are regulated.

Bank guarantee for the return of the advance. If an advance payment is expected in a tender under 44-FZ, then the amount of security for the contract must not be lower than the amount of the advance payment.

Methods for obtaining a bank guarantee are regulated by Articles 223-FZ and 44-FZ. These articles differ in the degree of severity towards the parties to state tenders.

Federal Law 44 dictates the rules for conducting tenders and regulates the requirements affecting the validity status of the guarantee.

The main differences between bank guarantees 223-FZ and 44-FZ are indicated in the following paragraphs:

Federal Law No. 44 specifies the mandatory entry of guarantees into the register, which is open in the information system. This is done by the Federal Treasury and is responsible for the timeliness and accuracy of the entered data. At the same time, Federal Law No. 223 does not provide for the introduction of guarantees into a unified information system.

Federal Law No. 44 specifies the conditions for credit institutions that issue guarantees. An important component of such an organization is its financial independence. The amount of the bank's personal funds must be at least one billion rubles. The license of the credit institution issuing the guarantee must be valid for at least five years.

Customers give preference only to those banks that are indicated in the list of the Ministry of Finance; in addition, an important point for customers is the fact that the banks are in the TOP.

Federal Law No. 44 states that the customer is obliged to establish the amount of security. The bank guarantee does not contain these conditions (223-FZ).

In accordance with Federal Law 223, there are three types of bank guarantees:

A guarantee to secure the application of the performer taking part in the auction.
Bank guarantee for the return of the advance payment.
Bank guarantee to ensure the implementation of a government contract.

All of the above types are officially prescribed in Federal Law No. 223.

223-FZ is more loyal in comparison with 44-FZ. However, it still specifies the conditions governing the process and nuances of obtaining a bank guarantee.

Namely, the law with 223-FZ states:

The bank guarantee operates according to the rules of irrevocability;
The guarantee must clearly establish the terms of its validity - beginning and end;
The customer is obliged to respond to the bank guarantee with approval or refusal within three days;
This guarantee must clearly state the amount of payment to the customer in the event of failure to fulfill its obligations by the contractor;
The bank guarantee must contain complete information about all the obligations of the contractor for which the guarantee is issued.

Currently, customers have begun to more often indicate that the contractor must have a bank guarantee. It acts as an effective tool that regulates the provision of conditions for participation in public procurement.

A bank guarantee will ensure the maximum successful outcome for your enterprise for the following reasons:

The guarantee does not require the costs required to repay the loan;
The majority of banks currently allow payments to be postponed without increasing the cost of the guarantee;
A bank guarantee makes it possible to use advance payments without worry;
Risks associated with the commercial activities of the parties are minimized when using a bank guarantee. If you have a guarantee, your status as a performer rises in his eyes, thereby confirming your desire to fulfill your obligations under the main contract in a quality manner.

Federal Law No. 185-FZ (dated July 21, 2007) “On the Fund for Assistance to the Reform of Housing and Communal Services” regulates the stages of development and activities of non-profit organizations that conduct tenders for work in the housing and communal services sector. This law regulates the holding of such competitions and relations between government bodies and constituent entities of the Russian Federation, between local governments and non-profit foundations.

What is the difference?

Contracts for the implementation of work in the housing and communal services sector under 185-FZ are identical to contracts under 44-FZ and 223-FZ. This text of the law does not establish rules for conducting auctions. Because of this, companies are guided by the above-mentioned federal laws. The bidding documentation specifies the obligation to ensure the execution of the bid. In this case, the bidder uses personal financial resources withdrawn from his own circulation as collateral to secure the application. Another, most profitable way is to issue a bank guarantee for the entire duration of the tender agreement. At the same time, the organization’s funds remain in circulation.

The specified Federal Law does not mention special conditions for guarantor banks, as in 44-FZ. But customers may demand from the contractor that the guarantor bank be included in the list of the Ministry of Finance, and the contractor’s company conducts its activities in accordance with the requirements of 44-FZ. In fact, Customers indicate this condition in every contract.

All additional functions of bank guarantees under 185-FZ (for the needs of housing and communal services) are similar to the documents issued to secure contracts under 44-FZ and 223-FZ.

Purpose of using the guarantee

Federal Law 185 states that a bank guarantee can be used by legal entities carrying out major repairs of residential premises. Basically, a guarantee is necessary for large contracts for the reconstruction of roofs, basements, engineering systems and elevators, for the insulation of facades and the development of documents regarding project activities.

Checking the validity of the warranty

According to the above law, bank guarantees are not entered into the Unified Register, since the contract is signed with a fund that has the right to distribute funds for the optimization and development of housing and communal services, and not with a state company. Checking the validity of the guarantee is very simple - you should send an official request to the bank indicated as the guarantor.

In a well-drafted contract, of course, there is also a section where the responsibility of both parties is spelled out in case of violation of the terms of the contract, but the judicial system is not known for its haste and litigation can last for years. During the period of the proceedings, the buyer loses access to the amount already paid under the terms of the contract, i.e. advance, which forces him to look for additional investors in order to transfer the order to another contractor.

The concept of a guarantee for the return of an advance payment

Prepayment, being a type of targeted financing, is aimed at advance payment of services or items specified in the contract. Bank collateral for the return of funds during the execution of the contract serves as a guarantee of the financial organization for the principal (borrower). This means that in the event of a violation for any reason of one or more sections of the contract (deadlines, unsatisfactory quality of products, etc.), the beneficiary will be refunded the advance payment that was transferred to them for the supply of goods or performance of work.

If in the contract the buyer has indicated a clause stipulating the supplier’s liability for failure to perform services or supply goods, a bank guarantee for the return of advance funds is concluded automatically. In the case of concluding an ordinary commodity and business agreement, the conditions for guarantee by a financial organization are the mutual consent of both parties. In state and municipal contracts concluded with the winners of tenders and auctions, the advance payment refund clause is included by default, in accordance with Law 44 - F3.

The conditions for the return of the advance payment, the procedure for applying and other nuances are spelled out in detail in the rules of the ICC and in the civil code of the Russian Federation, Art. 368 - 379.

Advance payment payment scheme under a bank guarantee

Receiving a preliminary payment consists of several stages:

The beneficiary (buyer) has an agreement received by proxy, which specifies the options for the warranty case and the obligations of the contractor;
After issuing a bank guarantee, the terms for payment of the advance are established, usually 1 - 2 days;
If the contractor violates any clauses of the contract and refuses to return funds already transferred to his account, the customer of the product/service puts forward a claim to the guarantor organization for their compensation;
The credit institution, in turn, checks the claim submitted by the beneficiary, the available accompanying papers and pays the customer the required amount;
Next, the bank makes demands on the principal for the return of the funds spent by him on the provision of the service.

Terms of bank guarantee for prepayment

The number of days to investigate the beneficiary’s application depends on the work pattern of the credit institution that acted as the guarantor, and on the degree of preparedness of the applicant. The basic package of documents required to begin consideration of a claim is almost the same for all banks:

The main document is a contract, which specifies the terms, mutual obligations and the amount of the penalty;
Detailed financial statements for the last year;
Documents confirming settlements with suppliers.

The bank guarantee comes into force from the moment it is received. In conclusion, it should be noted that most of the services provided by the bank are paid, so the principal must be prepared to pay a certain amount, usually ranging from 2 to 4% of the contract value.