This article discusses the main characteristics of tools that allow you to get a high-quality product or service. The customer has the right to independently set the conditions of the tender, protecting from suppliers of low-quality goods. The information contained below will also be useful for tender participants.
The Law On Public Procurement establishes procurement support tools, using which the customer can reduce the risk of purchasing low-quality goods and services. Such tools include:
- Securing of a tender offer (Article 24);
- Enforcement of the purchase agreement (Article 26).
The security in the tender is a guarantee that the winner will fulfil all the obligations that must be fulfilled under the agreement and undertakes to deliver goods or provide services of proper quality.
A guarantee is the only legal form of securing a tender offer. It can be issued by insurance, banking or other financial organizations. The most popular is the electronic bank guarantee, so we will focus on it in more detail below.
Should the customer require a guarantee?
In accordance with the current legislation, the state customer has the right to require the inclusion of a security requirement in the tender documentation. This is not the responsibility of the customer, but the fulfilment and provision of guarantees is the responsibility of all participants. The Law On Public Procurement says that the customer has the right to independently set the amount of collateral, but its size cannot exceed 0.5% of the purchase price (expected). A three percent security amount may be established when conducting a tender for the purchase of goods or services under the conditions specified in the tender documentation.
Which financial institutions provide a guarantee and how?
Let's list the main financial organizations that provide a bank guarantee for government customers:
- CB Privatbank JSC;
- FUIB JSC;
- UKREXIMBANK JSC;
- Oschadbank JSC and others.
The Bank, providing a guarantee to the tender participant, undertakes to pay compensation to the budget organization in case of violation of the terms by the tender participant. For example, if a participant withdraws an offer or refuses to sign a purchase agreement after being elected the winner of the auction.
As a rule, the bank makes the payment of funds after a written notification from the customer - budget organization. After payment, the bank has the right to send a similar notification to the participant himself, in which he will demand compensation for the bank's costs for fulfilling the guarantee to the customer.
It is important to note the fact that the customer does not have the right to demand a bank guarantee from any particular financial institution in order not to violate antitrust laws.
The main actions of the customer to determine the bank guarantee
In order to establish guarantee requirements, the state customer must specify:
- The size of the tender security in the auction announcement;
- Conditions for the provision of tender security. Namely, the type, size, validity period and reservations for cases in which the security of the tender offer is not returned to the supplier. This information should be fully reflected in the tender documentation.
In addition, the customer must verify the authenticity of the guarantee at the supplier qualification stage. Data on the authenticity of the guarantee, as a rule, is provided by the insurance company itself or the bank that issued the guarantee to the participant.
An electronic digital signature (abbreviated as EDS) is used for authentication. Banks and other financial organizations are recommended to indicate a link to the software solution with which the EDS is imposed in the headers and footers of the tender guarantee.
It is allowed to verify an electronic signature using one of two solutions:
- "IIT Korystuvach CSK-1".
These solutions allow you to verify a digital signature online and for free, without installing additional software.
In addition, some banks allow the possibility of checking the guarantee itself, and not the digital signature imposed on the document. For such verification, you need to go to the portal of the financial institution that issued the guarantee and upload the document with the guarantee in a special form. On the same page, you need to specify additional data (in particular, e-mail and phone). After that, you will receive a response from the bank about the validity or invalidity of the specified guarantee.
In what cases is the bank guarantee cancelled?
If the warranty has expired or it has been returned to the supplier, then it loses its validity.
The guarantee will not be returned to the participant if he:
- withdrew his tender offer before the end of the tender;
- refused to sign the purchase agreement after winning the tender;
- became the winner, but did not provide documents that could confirm the absence of grounds from Article 17 of the Law On Public Procurement, or provided them later than the deadline;
- became the winner of the tender, but did not provide the execution of the purchase agreement after receiving a written notification of the intention to conclude the agreement, if the provision of such security was required by the customer.