Liabilities not expressed in value terms. New rules for calculating penalties and fines under government contracts

15.04.2019

Now the register of bank guarantees is located at the link http://zakupki.gov.ru/epz/bankguarantee/extendedsearch/search.html

Until July 1, 2018, anyone could check the authenticity of the BG at the place where the state order is placed - on the EIS website, in the corresponding register. From July 1, in accordance with Part 8.1 of Article 45 of 44-FZ and clause 3 of the Rules approved by Government Decree No. 1005 dated 08.11.13, information on issued bank guarantees that are provided as security for applications and security for contract execution are not posted on the official website of the United information system.

In addition, information on bank guarantees contained in the Republic of Kazakhstan (unique number of the register entry of the bank guarantee, information on the return by the customer of the bank guarantee to the guarantor or on the notification sent by the customer to the guarantor about the release of the obligation under the bank guarantee, or other information) is in the Register of agreements on carrying out major repairs (unique number of the register entry of the bank guarantee) and subject to inclusion in the RBG, from 07/01/2018 is also not subject to placement on the state order portal - the official website of the EIS, in its open part.

Now information about bank guarantees is not published in the open part of the UIS. But it is in a closed section of the website where government orders are placed.

And customers can check the bank guarantee in their Personal Account on the information system website, and procurement participants, in accordance with Part 8.1 of Article 45 of 44-FZ, must receive from the bank that issued the bank guarantee for them an extract from the register of bank guarantees. The bank is obliged to do this within one business day after including information about the issued guarantee in the register.

From June 1, 2018, bank guarantees can be issued only by financial institutions that meet the requirements established by Russian Government Decree No. 440 dated April 12, 2018. These are the following requirements:

The bank must have its own funds in the amount of 300 million rubles and a rating of at least BB- (RU) on the national rating scale of the rating agency ACRA - Analytical Credit Rating Agency, and a credit rating of at least RuBB- on the national rating scale of the Expert RA agency.

These requirements were established until January 1, 2020, and can be found on the Ministry of Finance website. At the beginning of August, there were 184 banks on this list.

Update from 03/28/2019

15.04.2019

Now the register of bank guarantees is located at the link http://zakupki.gov.ru/epz/bankguarantee/extendedsearch/search.html

Until July 1, 2018, anyone could check the authenticity of the BG at the place where the state order is placed - on the EIS website, in the corresponding register. From July 1, in accordance with Part 8.1 of Article 45 of 44-FZ and clause 3 of the Rules approved by Government Decree No. 1005 dated 08.11.13, information on issued bank guarantees that are provided as security for applications and security for contract execution are not posted on the official website of the United information system.

In addition, information on bank guarantees contained in the Republic of Kazakhstan (unique number of the register entry of the bank guarantee, information on the return by the customer of the bank guarantee to the guarantor or on the notification sent by the customer to the guarantor about the release of the obligation under the bank guarantee, or other information) is in the Register of agreements on carrying out major repairs (unique number of the register entry of the bank guarantee) and subject to inclusion in the RBG, from 07/01/2018 is also not subject to placement on the state order portal - the official website of the EIS, in its open part.

Now information about bank guarantees is not published in the open part of the UIS. But it is in a closed section of the website where government orders are placed.

And customers can check the bank guarantee in their Personal Account on the information system website, and procurement participants, in accordance with Part 8.1 of Article 45 of 44-FZ, must receive from the bank that issued the bank guarantee for them an extract from the register of bank guarantees. The bank is obliged to do this within one business day after including information about the issued guarantee in the register.

From June 1, 2018, bank guarantees can be issued only by financial institutions that meet the requirements established by Russian Government Decree No. 440 dated April 12, 2018. These are the following requirements:

The bank must have its own funds in the amount of 300 million rubles and a rating of at least BB- (RU) on the national rating scale of the rating agency ACRA - Analytical Credit Rating Agency, and a credit rating of at least RuBB- on the national rating scale of the Expert RA agency.

These requirements were established until January 1, 2020, and can be found on the Ministry of Finance website. At the beginning of August, there were 184 banks on this list.

Update from 03/28/2019

Hello, dear colleague! In today's article we will talk about verifying the authenticity of bank guarantees under 44-FZ and 223-FZ. This financial instrument is actively used by procurement participants, both to secure applications and to ensure the execution of contracts. And since bank guarantees (abbreviated as BG) are very popular among suppliers, they are often counterfeited. In turn, a fake guarantee is a risk not only for the supplier, but also for the Customer, so in this article we will look in detail at how to check the BG yourself and not fall for the scammers.

1. Criteria that this bank guarantee must meet

Criterion No. 1

The bank that issued the bank guarantee must be included in the list of banks located on the website of the Ministry of Finance of Russia at the address: //www.minfin.ru/ru/perfomance/tax_relations/policy/bankwarranty/. This list is updated regularly. As of May 31, 2017, there were 279 banks on this list.

Note: Federal Law No. 223-FZ does not establish mandatory requirements for banks issuing guarantees. Such requirements can be established by the Customer himself in his Procurement Regulations. In general, it is worth noting that the requirements for guarantees issued under 223-FZ are more flexible than for guarantees under 44-FZ.

Criterion No. 2

Information about the BG must be contained in the register of bank guarantees on the official website of the Unified Information System in the field of procurement - www.zakupki.gov.ru. Moreover, information about the issued BG must be included by the bank in this register no later than one business day following the date of its issue (Part 11, Article 45 of 44-FZ).

Note: 223-FZ does not require that the guarantee must be included in the BG register.

Criterion No. 3

The guarantee must be irrevocable, i.e. the bank does not have the right to revoke such a BG under any set of circumstances. Thus, the guarantor undertakes to fulfill all its obligations.

Criterion No. 4

Criterion No. 5

The guarantee should not include 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.

Criterion No. 6

The guarantee must be printed on the bank's letterhead and must contain the details of such bank and license number.

Criterion No. 7

A BG for a large amount is issued under surety or collateral.

2. Signs of a fake bank guarantee

Sign No. 1 - Minimum amount of documents

Issuing a BG based on only a few documents (company details and a link to a contract (purchase)) or without any at all is a clear sign of fraud. The Central Bank of the Russian Federation provides instructions according to which the bank’s credit department must check the full set of documents. As a rule, such a set of documents includes:

• constituent documents;
• financial statements;
• tax returns;
• an application with reference to a procurement or contract;
• decoding information on key accounting items.

Important point: Without providing the original documents, you will never be given a real BG. Copies of documents are required only for making a decision on the issuance and registration of a BG, but not for its issuance.

Sign No. 2 - Short terms for issuing BG

Quite often you come across advertisements that talk about issuing BG in 1-3 hours. This is also a clear sign of fraud, because document verification takes a certain amount of time from 3 to 7 days.

Sign No. 3 - The commission for issuing BG is significantly lower than the market average

Before you apply for a bank account, you need to look at the tariffs of several banks. Usually the difference between the tariffs will not be very large. If you are offered to issue a BG at a price significantly lower than the market average, then this is a clear sign of a fake BG.

Sign No. 4 - Transfer of funds for the issued BG to the account of a third party

The amount of remuneration for the issued BG must be transferred to the account of the bank that issued it. The purpose of the payment must indicate “Payment of remuneration for the provision of a bank guarantee...”. If you are offered to transfer money to the account of another organization, then this is a clear deception. Under no circumstances should you do this.

Also, be sure to pay attention to the details specified in the documents, they must be identical everywhere. All signatures must be deciphered, and seals must be clear and readable.

One of the most common schemes is to use the names of organizations similar to the names of large banks.

3. How does a fake bank guarantee threaten a supplier?

The supplier who provides the Customer with a BG may or may not know that the warranty is fake. However, in both cases he exposes himself to great risk:

Firstly, The customer may require the supplier to replace the warranty within 5-10 days.

Secondly, The customer may refuse to enter into a contract or unilaterally terminate the contract with the supplier at any stage of its execution if he finds out that the guarantee is false.

Third, a criminal case may be initiated against the supplier under Article 159 of the Criminal Code of the Russian Federation “Fraud”.

Fourth, information about the supplier may be entered into the register of unscrupulous suppliers. Thus, he will be deprived of the opportunity to take part in auctions for two years.

4. Methods for checking a bank guarantee

Checking the guarantee on the official website of the EIS in the register of bank guarantees

This method is perfect for checking the BG obtained under 44-FZ. To do this, you need to go to the RBG on the EIS website and enter the register entry number, or the name of the bank, the name of the supplier, the procurement notice number, the contract registry number or the procurement identification code (IKZ) in the search bar. And then click on the icon with a magnifying glass located on the right side of the search bar.

If you find a BG in the registry with the status “Posted”, then there is nothing to worry about.

A detailed algorithm for checking BG in the register of bank guarantees is described in.

Note: There is both an open registry of BGs and a closed one, which includes information about BGs provided as security for applications and execution of contracts, if such applications and (or) contracts contain information constituting a state secret. Accordingly, you will not find information about such BGs in the public domain. To verify such guarantees, a written request must be made to the Treasury.

The following methods are ideal for checking a bank guarantee under 223-FZ:

Official request to the guarantor bank

You can send an official written request to the head office of the guarantor bank in order to confirm the fact of issuance of the BG by number and date of issue. The form of such a request is not regulated in any way, therefore it can be prepared by you in any form. If you contact the bank by phone, they will most likely refuse to provide you with such information, citing its confidentiality.

Official request to the Central Bank of the Russian Federation

You can also send an official written request to the Central Bank of the Russian Federation in order to confirm the fact of issuing a bank statement by a specific bank.

Personal visit to the territorial bank branch

As a rule, many banks have branches in different cities. Therefore, if there is a branch of the bank that issued the guarantee in your city, then you can visit it in person.

Checking a bank guarantee online through the Central Bank of the Russian Federation

Here you can find out:

• is there such a bank at all;
• does such a bank have the right to issue banknotes;
• did this bank issue BG;
• Are there any violations by this bank of the regulations of the Central Bank of the Russian Federation for the Bank of Russia?

Suppose the bank you are looking for is in the directory, left-click on the name of this bank to view full information.

On the page that opens with information about the bank, you need to find the section “Turning sheet data for accounting accounts”, select the current year and the last reporting period.

Then, in the statement that opens, you need to find account number 91315. It is most convenient in this case to use the keyboard shortcut (Ctrl + F).

This line reflects information about financial transactions under bank guarantees. If you see zeros in the line, then the bank did not issue any bank guarantees at all. If the line reflects an amount less than the BG issued to you, then we can assume that such a BG is counterfeit or off-balance sheet. Perhaps the bank is not even aware of such a guarantee.

An amount exceeding the size of your BG does not mean that the guarantee issued to you is real. However, this indicates that this bank actually issues banknotes.

This method is more suitable for calculating “clumsy” fakes of BGs.

Note: The Central Bank of the Russian Federation for banks operating in the Russian Federation has established a limit on the size of the BG issued to one principal (i.e., procurement participant (supplier)). The size of the BG should not exceed 25% of the bank's capital.

How to check that the amount of your guarantee does not exceed 25% of the bank's capital? On the page with information about the bank, find the section “Calculation of equity (capital)”, this is form 123. Select the year and last reporting period.

In line No. 000 “Equity (capital)” you will find information about the amount of the bank’s capital as of the reporting date.

And if the size of your guarantee is more than 25% of the bank’s capital, then this is a clear violation that may threaten the bank with revocation of its license. If the bank is ready to issue you such a guarantee, then most likely it is not going to reflect it on its balance sheet. And in the event of claims from the Customer, it will deny the fact of issuing such a BG. So keep this in mind.

5. Frequently asked questions

Question No. 1— Should the Customer check the BG provided by the participant?

Answer: 44-FZ does not contain a direct obligation for the Customer to verify the authenticity of the bank guarantee. However, the Customer must accept the participant’s BG, or refuse to accept such a guarantee, on the grounds specified in Part 6 of Article 45 of 44-FZ. Thus, the Customer must check the BG for compliance with its conditions contained in the notice (procurement documentation, draft contract), parts 2, 3 of Art. 45 44-FZ, as well as for its presence in the BG register.

Question No. 2— What to do if the bank that issued the bank guarantee has its license revoked?

Answer: This does not mean that the issued BG is automatically cancelled. However, for the Customer such a guarantee has no value, because if necessary, the Customer will not be able to use it.

Question #3— Which banks issue low-quality bank guarantees?

Answer: It is quite easy to identify banks that issue low-quality guarantees. To do this you need:

1. Go to the main page of the official website of the EIS (www.zakupki.gov.ru), select the “Procurement” section in the left vertical menu and select the “Register of Bank Guarantees” item in the drop-down menu.

1. Then, in the register that opens, click on the hyperlink “Refine search parameters and select “Bank guarantee status” - Refused acceptance. Additionally, you can set the date of placement of the BG in the register 2-3 months later than the day of inspection. Next, click on the “Refine Results” button.

1. Next, in the issuance results, we look at the banks whose guarantees were not accepted by the Customers.

1. You can also follow the “Documents” link and see for what reason this or that guarantee was not accepted.

If guarantees from the bank where you plan to obtain a BG are often rejected, then you should not order a guarantee from such a bank.

Question #4— Can a participant who has provided a fake BG avoid entering information about him into the RNP?

Answer: Yes, entering information into the RNP can be avoided if the participant manages to prove his innocence. If a broker or bank issued you a fake guarantee, then you must file a corresponding statement with the police, and provide a copy of such a statement at the FAS meeting.

Question #5— How to check a broker providing services for issuing BG?

Answer: First, you need to check whether there is an agency agreement between the broker and the bank. Secondly, see if this broker has a website and contact information on it. Thirdly, you can call the bank and find out whether it works with such a broker or not. Fourthly, payment of the commission for issuing a BG should be transferred to the bank account, not the broker.

That's all for today! See you in the next article.

P.S.: Don’t forget that you can run into a fake either by working with a broker (intermediary) or with a bank. Therefore, be sure to check bank guarantees for authenticity, or better yet, work with trusted banks. You can quickly calculate the cost of a bank account, as well as choose a reliable bank and the best conditions for issuing a guarantee on the website -

Register of bank guarantees according to 44-FZ- a special website that collects key data on guarantees provided by financial institutions. The purpose of this service is to ensure obligations to fulfill contracts at the municipal and federal levels. The unified register was formed by the government of the capital of the Russian Federation in 2013, and it is based on data from the EETP database.

General provisions

A bank guarantee is an effective way to ensure the fulfillment of contractual obligations by the parties to a transaction. Most often, this service is typical for government orders. The creation of a register of issued bank guarantees reduced the risks when concluding contracts and negated the danger of falsification of guarantees by dishonest participants.

At the present stage, financial institutions enter data into the register of bank guarantees under 44-FZ on their own (without coercion from controlling structures). For more comfort There are a number of options available for users:

• Possibility of combining the register with the electronic government order system.
• Ease of making a guarantee.
• Convenient online authentication control.

Register of bank guarantees under 44-FZ: why is it necessary?

Against the backdrop of increasing cases of forgery of bank guarantees, a number of measures were taken to eliminate fraudulent transactions and reduce the risk of issuing counterfeit documents. One of them is the creation of a register of bank guarantees.

Since the beginning of 2014, Federal Law No. 44 came into force, according to which the recording of issued bank guarantees in the general register has become a mandatory requirement. This step allowed us to solve a number of problems:

• Reduce risks during government procurement.
• Increase the likelihood of a successful transaction at any level.
• Bring to the legal market a system for recording bank guarantees.
• Eliminate any risks of document falsification.

Initially, the unified registry system was implemented and tested in the capital's financial institution (Bank of Moscow). At the present stage, the register of bank guarantees is available to all institutions, suppliers and customers. According to the requirement of Federal Law-44, all credit structures must be connected to the register. At the same time, each person can check the legality of the service provided and obtain the necessary information.

Which financial institutions issue bank guarantees?

According to the law, a bank guarantee cannot be entered into the register under Federal Law-44 if the credit institution is not on a special list (maintained by the Ministry of Finance).

To comply with existing requirements, a banking institution must have:

• License of the Central Bank of the Russian Federation to conduct activities in the banking sector.
• Capital in the amount of one billion rubles or more.
• No violations in compliance with instructions and standards for six months.
• Lack of recommendations to the institution on improving the financial component.