It is impossible to collect from the bank the costs of obtaining a guarantee when the state purchase is canceled due to the fault of the customer
The winner of the purchase concluded a contract with the bank (hereinafter referred to as the contract) for obtaining a security guarantee and paid a commission for its provision.
However, the controllers ordered to cancel the results of the purchase due to violations by the customer of its procedure.
The winner demanded that the bank terminate the contract and return the commission, since the contract was not concluded based on the results of the purchase.
The bank refused. The courts supported it: the
parties agreed in the contract the conditions for issuing a guarantee. These include the payment of a commission. The Bank has fully and timely fulfilled its obligations;
the warranty and the contract are not invalidated;
the customer did not refuse to accept the guarantee, since it is properly issued;
the guarantee is not used to ensure the performance of the contract due to the instructions of the controllers. This ruled out the possibility of signing a contract with the winner;
the bank is neither a participant in the purchase, nor a party to the contract. It has nothing to do with the cancellation of the purchase and could not affect the conclusion of the contract;
the causal relationship between the winner's losses and the bank's actions has not been proven.
The Supreme Court of the Russian Federation did not review the case.
Note that in practice there is an example when, under similar circumstances, the winner collected a commission from the customer. After all, it was his fault that the purchase was canceled.
Document:
Definition of the Armed Forces of the Russian Federation from 13.09.2021 N 305-ES21-15281