Supreme Court of the Russian Federation: if the public procurement was canceled due to the fault of the customer, the commission for obtaining a guarantee can be returned

19 July 2021, Monday

The winner signed the contract and submitted a bank guarantee to ensure its execution. He paid a commission for making a guarantee.
However, the controllers ordered to cancel the results of the purchase due to violations by the customer of its procedure. The order has been fulfilled. The contract has not been signed.
The winner went to court to recover the costs of obtaining a bank guarantee.
The customer explained:
the expenses incurred are not losses, but costs related to participation in the purchase. Their reasonableness has not been proven. 
-the winner could have terminated the bank guarantee agreement and returned the reward, but did not do so.
The courts supported the winner: the
purchase was canceled due to the fault of the customer. This caused losses in the form of remuneration paid to the bank;
the winner has duly fulfilled the obligations to prepare the contract enforcement security;
the costs of paying the commission do not relate to business risks, since the provision of security for the performance of the contract is a requirement of Law No. 44-FZ.;
losses arose due to illegal actions of the customer during the purchase;
the customer has not proved that the company's expenses are overstated. The information provided by him from the websites of credit institutions reflects the minimum amount of payment for issuing a bank guarantee without taking into account the specific circumstances of concluding a contract for its provision;
the argument that the winner could have terminated the bank guarantee agreement and returned the remuneration is untenable. Under the terms of the contract, the commission is not refunded if the guarantee expires prematurely.
The Supreme Court of the Russian Federation did not review the case.
Document:Definition of the Armed Forces of the Russian Federation from 30.06.2021 N 307-ES21-9691

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