Each time, when concluding a contract, the customer risks that the contractor will perform poor-quality work or not perform it at all. To insure against such cases, he must prescribe the security of the contract. More details on how to do this, read on.
Guarantee of the fulfillment of contract conditions is usually required in contracts with public procurement. Before entering into an agreement, the winner of the auction must prove its reliability. How to do it? It is necessary to provide a pledge in the form of 30% of the value of the contract, which upon completion of the work will return to the performer. Such a bank guarantee to enforce a contract can save a company that does not have excess millions on its accounts. How to apply this operation correctly?
Types of collateral
Pledge of funds - before signing a contract, the supplier must transfer to the customer's account the amount of money in the amount established by the bidding documents. This amount is "frozen" until the end of the agreement. But this is not a deposit, interest on the balance is not accrued.
A bank guarantee for the enforcement of a contract is a written application of the bank to fulfill all obligations of the principal. If the performer does not cope with the task, the bank will transfer to the customer the amount specified in the contract. The guarantee is subject to mandatory registration in the register. The percentage for its maintenance is usually 2-5% of the amount of collateral.
The essence of the bank guarantee
The company-winner of the state contractor is obliged to provide security before the conclusion of the contract. Otherwise, it will be considered that she avoids signing the documents. The terms of the bank guarantee stipulate that in case of non-fulfillment of the contract the customer can apply to the bank for payment of money. The credit institution collects the amount from the executor, who must return the funds to the bank or provide a pledge.
Types of bank guarantees
- Tender. The participants of the competition must provide the security of the application in the form of a guarantee (if the bidding was not in electronic form - by transferring funds to the customer's account). It is a confirmation that in case of victory the bidder will not refuse to conclude a contract.
- A bank guarantee to enforce the contract protects the buyer from unscrupulous counterparties. If the terms of the contract are met poorly or the contractor refuses to provide the goods, the bank will reimburse the money to the injured party.
- Guarantee of a refund. If the initial price of the contract is more than 50 million rubles. then the customer must prescribe the collateral in the performance of the contract in the amount of 10-30% of the original value (NMC), but not less than the amount of the advance. If the prepayment exceeds 30% of the NBCC, the security amount is equal to the advance.
How is the bank guarantee regulated? 44-FZ of 05.04.13. It outlines 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 can transfer funds to the account of the customer or provide a guarantee. The actions of the auction organizer are also limited by the legislative framework. The requirements for the application must be specified in the solicitation documents.
A bank guarantee is a convenient way of providing. The contractor needs to study the requirements in detail. If the provided warranty does not answer them, then the customer has the right to refuse to conclude the transaction.
Bank guarantee period
Tender security must be valid for 2 months after the completion of receipt of applications. The guarantee for securing the contract and for the return of the advance must be one month longer than the validity period of the contract. The count usually starts from the moment of signing the documents, unless otherwise specified in the contract.
- As a guarantor of the transaction, a credit institution or an insurance company acts.
- For the issuance of security, the principal pays a reward.
- Under no circumstances can a bank guarantee be revoked.
- The right of claim belonging to the beneficiary can not be transferred to a third party.
The maximum and minimum amounts of collateral are pre-determined by the customer and recorded in the documentation. The calculation of the rate is carried out as a percentage of the initial maximum price (NICC). It varies in the range of 0.5-30%, but should not be less than the advance. Let's consider more in detail. What can be a bank guarantee?
- 44-FZ stipulates that the provision of the tender shall cover 0.5-5% of the NMI. If the price is less than 1 million rubles. then 1%. The maximum threshold can be reduced to 2% in the cases prescribed in clause 15 of the 44-FZ.
- The guarantee of performance of obligations should cover 5-30% of the NMCC. If the initial cost is more than 50 million rubles. - 10-30%. If the terms of the contract provide for prepayment, the amount of the guarantee can not be less than the advance.
- If the application on the part of the supplier has decreased by 25%, the supplier may issue security with a 1.5-fold excess of the amount prescribed in the contract, provided that it does not exceed the advance payment.
- The guarantee for the return of the advance must exceed the size of the advance payment.
In some cases, the bidder is exempt from the guarantee. For example, if the supplier is a state or a municipal institution, no security is required under the terms of the contract. Customers can release executors from providing collateral if:
- the contract amount is less than 100 thousand rubles;
- the purchase of cultural property, weapons;
- the contract is concluded with the monopolist.
Not every credit institution can provide financial security to the executor. Banks issuing bank guarantees are subject to inclusion in the list of organizations that meet the requirements for tax purposes. The register is maintained by the Ministry of Finance and the Central Bank. In 2016, it included 301 credit institutions. These are banks with a stable position, complying with all the regulations that are licensed to carry out such operations and own capital of more than 1 billion rubles. 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 written obligation of the bank should include a list of bank guarantees and the amount of collateral. If the terms of performance of the contract are delayed, the bank must pay a penalty of 0.1% for the day that the obligations are missed. This condition should be spelled out in the contract. It also contains the obligations of the executor, the validity period of the document, the list of documents provided by the customer.
Advantages and disadvantages of guarantee
If the security is provided by direct transfer of funds to the customer's account, the contract will be concluded faster. But then the performer will have a large amount withdrawn from the turnover for an indefinite time (the transaction can last several years). Not every organization can afford it. The bank guarantee helps to solve this problem. Its design takes a long time. The service is not cheap. But the design of the guarantee allows you to avoid large investments.
Obtaining a guarantee
You can issue a guarantee in several ways. Depending on the urgency of the application and the amount of the contract, banks offer such ways of obtaining security.
A bank guarantee for the enforcement of a contract, an application or a refund is issued through the TenderHelp service. It is enough to collect and download documents, register on the site and send an application to the bank. The timing of consideration of documents depends on the NMCC:
- up to 5 million rubles. - 3 hours;
- up to 15 million - up to 12 hours,
- more than 15 million - 3 days.
The bank guarantee is also provided in electronic form.
If it is a question of securing security for a large sum (more than 20 million rubles) or issuing guarantees, a limit is set, then all documents will have to be transferred to a bank employee. This method is also used by organizations that do not have programs for accelerated issuance of guarantees in the product line.
This method is used by banks that want to attract new customers. In special programs, clear conditions for "entry" are prescribed, a fixed list of documents, coordinated actions between departments. Under such conditions, the term for processing documents does not exceed 5 days, but transactions are considered within 10-15 million rubles.
A pledge is requested if the company has an unsatisfactory financial condition or turnover that does not meet the guarantee requirements. Without collateral, representatives of 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 an account with a bank and conducting turnover on it for some organizations is one of the key conditions. If it is not satisfied, then the client can expect an amount of no more than 10-15 million rubles.
Let's consider the basic documents necessary for registration of a guarantee. This list is not exhaustive, as each bank may have its own requirements for the client.
- Application for warranty.
- Information about the applicant company.
- Copy of statutory documents (TIN, OGRN).
- Extract from the Unified State Register of Legal Entities, received no more than 30 days prior to application.
- Copies of the order on appointment of the head.
- Copies of powers of attorney.
- Accounting statements: balance sheet and statement of financial results; for IP - tax declaration on USN, an extract from the book of income accounting, a declaration of 3-NDFL).
- Competitive documentation, procurement number, protocol on the 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 terms of service in the credit institution, you need 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 makes guarantees in electronic form, it is not a fact that it cooperates with clients from other areas.