Banking is a guaranteefulfillment of obligations in government contracts. The rules of its provision and all the nuances of use are described in the Federal Law No. 44 “On the contract system in the field of procurement for municipal needs”.
There are cases where a bank guarantee does notis provided. For example, if the document is signed between government organizations (even if the notes indicate the opposite). The bank guarantee for the enforcement of the contract does not apply if the subject of the transaction is a loan. The law provides that the customer can independently refuse from the provision or use the other work as the latter. This applies to one-time deliveries in the amount of no more than 100 thousand rubles, the acquisition of cultural property, the purchase of military equipment, which have no analogues in Russia.
Also, the warranty is not required in such cases:
if the participant in the transaction is an individual or social organization;
the draft specifies the conditions of bank support;
Advance payments are transferred to the account of the territorial treasury body;
the amount of the advance payment is 70% of the delivery cost, and the balance is paid after the completion of the services.
If the contract provides for the enforcement of the contract, the terms of the bank guarantee must be clearly stated in the document.
The bank guarantee for the enforcement of the VTB contract must necessarily contain the following items:
type (return of advance, fulfillment of obligations, etc.);
details of the beneficiary;
data of the contract to which the security is issued;
guarantee format (written, electronic);
form (bank, proposed by the beneficiary);
amount;
currency;
the term of the bank guarantee to enforce the contract.
It is necessary to describe in detail the order of settlements.The guarantee is provided for a fee, which is set as a percentage or in a fixed amount. The parties decide how it will be paid: at the same time, according to the schedule, before the issue, until a certain date. Sometimes banks require collateral in the form of real estate or a guarantee.
Enforcement of the state contract- bank guarantee, which can be provided for participation in the competition or protection of the interests of customers by the winner of the auction. Sometimes the document is drawn up and on the listed advance payment. So the customer is trying to protect themselves from unscrupulous performers. The customs guarantee is used in the conditions of the regime of temporary importation of goods into the territory of another country.
There are two types of state contract security:
1. Providing a guarantee.
2. Transfer of money to the customer’s account.
The performer chooses for himselfany of the options. The ability to use a bank guarantee in part, and the remaining part of the cash cover is missing. The document is signed with only one credit institution for the entire amount of the delivery.
Bank guarantee to enforce the contract provided in the amount of 5-30% of the maximumprice, which is specified in the notice. If the contract value exceeds 50 million rubles, this figure increases to 10-30%. The amount of the security must exceed the amount of the advance if the latter is less than 30%. So the customer insures the risk of non-return of funds if the performer refuses his obligations.
Very often the performer significantly underestimatesminimum transaction price to attract customers. In such cases, anti-dumping measures take effect. If the contract value is understated by a quarter or does not exceed 15 million rubles, then either the customer provides information characterizing him as a bona fide participant in the transaction, or there must be a bank guarantee for securing the execution of the contract, a sample of which will be presented later. In the second case, the contractor will have to insure the risks 1.5 times more than the initial ones.
Перечисление аванса является более надежным way confirming the intentions of the parties. There is no need to study banking regulations, the risk that the documents will not be accepted. Credit can also be used as collateral.
Money must go to the specified in the projectterm, otherwise the contract will not be concluded. The document itself should indicate the date of return of the collateral. Most often this is the next day after the signing of the certificate of completion.
Bank guarantee for enforcementThe contract may not be issued by any credit institution, but only by that included in the list of financial institutions, the guarantees of which are taken into account for the purposes of NU. It is presented on the website of the Ministry of Finance and the Central Bank of the Russian Federation. A credit institution must meet the following requirements:
Have a license of the Central Bank of the Russian Federation.
To carry out banking activities for at least five years.
Have own funds in the amount of not less than 1 billion rubles.
At the beginning of 2015, just over 300 banks met these requirements.
The document must contain a clear statement of obligations, the amount of the transaction. In case of delay in settlements, the bank undertakes to pay a penalty in the amount of 0.1% per day.
The guarantee must be irrevocable, that is, one that cannot be withdrawn by the bank under any circumstances.
The moment of fulfillment of obligations is considered the date of deposit of funds.
Enforcement of the contract - bank guarantee. The validity period must be at least 30 days longer than the duration of the main contract.
The law allows the customer in cases of delay of payment for 5 days to write off funds.
Warranty Compliance DecisionCustomer must be accepted within 3 days. If the security does not meet the conditions, you must provide the contractor a written refusal stating the reason. There may be several:
1. The bank guarantee for the enforcement of the contract is not registered in the register of the Federal Treasury.
2. The document was signed by a financial institution, which is not on the list of the Ministry of Finance.
3. The contract does not comply with the requirements of the Federal Law No. 44.
The algorithm for signing papers is similar to the processloan processing. The decision is made on the basis of the analysis of documents of a potential bidder. In practice, this process takes at least 2 weeks. Sberbank bank guarantees to ensure the execution of the contract counts for each client individually, taking into account government restrictions. In practice, the maximum amount does not exceed 25% of the contract value. As well as a loan, Sberbank guarantees the execution of a contract not for free, but for a fee. The amount of commission depends on the amount of funds, terms, availability of collateral.
Банковская гарантия - в качестве обеспечения execution of the contract - allows the customer to reduce the risks of poor-quality work. The contractor can enter the market of government orders and large corporations. The application of the guarantee allows you not to divert money from circulation, to send them to finance current activities or to cover costs. If you place temporarily free funds on deposit, the interest income will exceed the amount of the commission paid for the guarantee. A credit institution from such transactions receive additional income. At the same time, it assumes responsibility for the principal’s debts.
Branch of OJSC (guarantor) represented by director I.I. Petrov, which acts on the basis of power of attorney No. AA75, informs: it is aware that ZAO (the principal) is recognized as the winner of the auction for the right to conclude a contract for the construction of a highway conducted by LLC (the beneficiary), on the results of which the contract is concluded.
The guarantor ensures that the principal fulfills his obligations.
The document comes into force from the moment of its signing.
The guarantor undertakes to pay the beneficiary funds in the amount not exceeding 400,000 (four hundred thousand) rubles within 3 (three) working days from the date of receipt of the claim containing:
Documents should be attached to the application:
The claim must be made during the warranty period at the address: Belgorod, ul. Road 1.
The responsibility of the guarantor is limited to the payment of the amount for which this document is signed, and is reduced by the amount of funds paid to the beneficiary.
The document is compiled in a single copy and is valid until 12/31/2015.
When the beneficiary receives funds, hetakes them into account on account 51, "Bank accounts" and 76, "Settlements with creditors". The principal's debt is indicated depending on the type of obligations: on account 58-3 "Loans", 62 "Settlements with buyers", 58 "Financed investments". The beneficiary must recognize the funds that were received as payment for the state order as proceeds from the sale. How is a bank guarantee for ensuring the execution of a contract displayed in CU? Postings are presented in the table below.
DT | CT | Operation |
51 | 76 | Funds received from the bank |
76 | 68 (58-3) | Written off principal debt |
008 | Termination of obligations |
That, in fact, is all that you should pay attention to when drafting bank guarantees.
