Each time, entering into a contract, the customer risks that the contractor will carry out poor-quality work or not perform it at all. To insure against such cases, he must prescribe a contract security. For more details on how to do this, read on.
The guarantee of the fulfillment of the terms of the contract is usually required in contracts with public procurement. Before concluding an agreement, the winner of the auction must prove his reliability. How to do it? It is necessary to provide a deposit in the form of 30% of the contract value, which upon completion of the work will be returned to the contractor. Such a bank guarantee for the enforcement of the contract can save a company that does not have the extra millions on its accounts. How to arrange this operation correctly?
Types of collateral
Pledge of funds - before concluding a contract, the supplier must transfer the amount of money to the customer’s account in the amount established by the tender documentation. This amount is "frozen" until the end of the agreement. But this is not a deposit, interest on the balance is not charged.
A bank guarantee for the enforcement of a contract is a written statement from a bank to fulfill all obligations of the principal. If the contractor fails to cope with the task, the bank will transfer the amount specified in the contract to the customer. The warranty is subject to mandatory registration in the registry. The percentage for its service is usually 2-5% of the amount of security.
The essence of the bank guarantee
The winner of the state tender is obliged to provide security before the conclusion of the contract. Otherwise, it will be considered that she refuses to sign documents. The terms of the bank guarantee stipulate that in the event of non-performance of the contract, the customer may apply to the bank for payment of money. The credit institution charges the amount with the contractor, who must return the funds to the bank or provide a pledge.
Types of bank guarantees
- Tender. Bidders must provide collateral for an application in the form of a guarantee (if the bidding was not held in electronic form - by transferring funds to the customer’s account). It is a confirmation that in the event of a victory the bidder will not refuse to enter into a contract.
- A bank guarantee for the enforcement of the contract protects the buyer from unscrupulous counterparties. If the terms of the contract are not fulfilled poorly or the contractor refuses to provide the goods, the bank will refund the funds to the injured party.
- Advance return guarantee. If the initial contract price is more than 50 million rubles. then the customer must prescribe the security in the execution of the contract in the amount of 10–30% of the initial value (NMTC), but not less than the amount of the advance. If the prepayment exceeds 30% of the NMCC, the security amount equals the advance.
What is the bank guarantee regulated by? 44-FZ of 04/05/13. It spelled out new legal relations in the field of public procurement. The document was created on the basis of a detailed analysis of the current procedure. The new rules meet the needs of the state and significantly increased the usability of the law.
To ensure the fulfillment of obligations, the winner of the tender may transfer funds to the customer’s account or provide a guarantee. The actions of the organizer of the auction are also limited by the legislative framework. Requirements for the application must be specified in the tender documentation.
A bank guarantee is a convenient way to secure. The contractor needs to study the requirements in detail. If the provided guarantee does not respond to them, the customer has the right to refuse to conclude the transaction.
Term bank guarantee
Tender security must be valid 2 months after the completion of the application. The guarantee of the guarantee of the contract and the return of the advance must be 1 month longer than the period of the contract. The countdown usually starts from the moment of signing the documents, unless otherwise specified in the contract.
- The guarantor of the transaction is a credit institution or an insurance company.
- For issuing a security principal pays remuneration.
- Under no circumstances can a bank guarantee be revoked.
- The right of claim belonging to the beneficiary cannot be transferred to a third party.
The maximum and minimum amounts of security are set in advance by the customer and recorded in the documentation. The calculation of the rate is carried out as a percentage of the initial maximum price (NMCC). It varies in the range of 0.5-30%, but should not be less than the advance. Let us consider in more detail. What could be a bank guarantee?
- 44-FZ stipulates that the security of the tender should cover 0.5–5% of the NMCC. If the price is less than 1 million rubles. then 1%. The maximum threshold can be reduced to 2% in cases prescribed in paragraph 15 of 44-FZ.
- The guarantee of performance of obligations should cover 5-30% of NMCC. If the initial cost is more than 50 million rubles. - 10-30%. If the terms of the contract provide for prepayment, then the amount of the guarantee can not be less than the advance.
- If the request from the supplier has decreased by 25%, the supplier may issue collateral with a 1.5-fold excess of the amount specified in the contract, provided that it does not exceed the advance.
- The guarantee for the return of the advance must exceed the amount of the advance payment.
In some cases, the bidder is exempted from the provision of a guarantee. For example, if the supplier is a state or a municipal institution, provision for the fulfillment of the terms of the contract is not required. Customers may exempt performers from providing collateral if:
- the contract amount is less than 100 thousand rubles;
- carried out the purchase of cultural property, weapons;
- the contract is with the monopolist.
Not every credit institution can provide financial support to the contractor. Banks issuing bank guarantees are subject to inclusion in the list of organizations that meet the requirements for tax purposes. The registry is maintained by the Ministry of Finance and the Central Bank. In 2016, it listed 301 credit institutions. These are banks with a stable position, complying with all standards, licensed to carry out such operations and own capital of more than 1 billion rubles. The validity of the bank guarantee is confirmed by its inclusion in a special register. Not properly registered collateral is not accepted by the customer. Another requirement is that the guarantee must be irrevocable, that is, under no circumstances will the bank be able to withdraw it.
The bank’s written commitment must include a list of bank guarantees and the amount of the security. If the terms of the execution of the contract are delayed, the bank must pay a penalty of 0.1% for the day of omission of performance of obligations. This condition must be spelled out in the contract. It also contains the obligations of the contractor, the validity of the document, a list of documents provided by the customer.
Advantages and disadvantages of the warranty
If the security is carried out by direct transfer of funds to the customer’s account, the contract will be concluded faster. But then the executor will withdraw a large amount from circulation for an indefinite time (the transaction may last for several years). Not every organization can afford it. The bank guarantee helps to solve this problem. Its design takes a long time. Worth the service is not cheap. But the guarantee allows you to avoid large investments.
Getting a guarantee
Warranty can be issued in several ways. Depending on the urgency of the application and the amount of the contract, banks offer such methods of obtaining security.
A bank guarantee for the enforcement of the contract, application or return of an advance is issued through the TenderHelp service. It is enough to collect and upload documents, register on the site and send a request to the bank. Terms of consideration of documents depend on NMCC:
- up to 5 million rubles. - 3 hours;
- up to 15 million - up to 12 hours
- more than 15 million - 3 days.
A bank guarantee is also provided electronically.
If we are talking about issuing collateral for a large amount (more than 20 million rubles) or for issuing guarantees, there is a limit, then all documents will have to be transferred to a bank employee. This method is also used by organizations that do not have in the product line of programs for the accelerated issuance of guarantees.
This method is used by banks that want to attract new customers. In special programs spelled out clear conditions of “entry”, a fixed list of documents, coordinated actions between departments. Under these conditions, the deadline for paperwork does not exceed 5 days, but transactions are considered within 10-15 million rubles.
A pledge is requested if the company has poor financial condition or turnover does not meet the requirements of the guarantee. Without collateral, small and medium-sized businesses can receive 500-700 thousand rubles. But the guarantee of the owners of the company is a prerequisite for all banks.
Opening a bank account and holding turnover on it for some organizations is one of the key conditions. If it is not satisfied, the client can count on an amount of no more than 10-15 million rubles.
Consider the basic documents required for registration of the guarantee. This list is not exhaustive, since each bank may have its own requirements for the client.
- Application for a guarantee.
- Information about the applicant company.
- Copy of statutory documents (TIN, OGRN).
- Certificate of Incorporation, received no more than 30 days prior to the submission of the application.
- Copies of the order of appointment of the head.
- Copies of powers of attorney.
- Accounting reports: balance sheet and statement of financial results; for individual entrepreneurs - tax declaration on the simplified taxation system, extract from the income accounting book, declaration 3-NDFL).
- Tender documentation, procurement number, protocol on recognition of the winner, draft contract.
Part of the documents, for example, an extract from the Unified State Register of Legal Entities, should be up to date. Therefore, active bidders should regularly update the main package of documents.
How to choose a bank?
As mentioned earlier, not every bank can provide guarantees. Therefore, having studied the conditions of service in a credit institution, it is necessary to check whether it is listed in the register approved by the Ministry of Finance. When choosing a particular institution, you should also pay attention to the region of its presence. Even if a credit institution prepares guarantees electronically, it is not a fact that it cooperates with clients from other areas.