The courts recovered the lost profit from the bank, since the state contract with the winner was not concluded due to his fault
The customer did not conclude a contract with the winner because he submitted an incorrect security guarantee.
The winner notified the bank of the termination of the contract with him and demanded to recover losses:
-commission for issuing a guarantee;
-lost profit in the amount of the contract price.
The court of first instance recovered only the amount of the commission: the fact that a contract was not signed with the winner does not mean that he suffered losses in the form of lost profits.
The winner asked to appoint an examination. Experts have decided that there is a lost profit, but in a smaller amount.
The appeal took into account the results of the examination and recovered the lost profit from the bank, but reduced its amount. The decision of the court of first instance was changed:
1. The guarantee did not meet either the terms of the procurement documentation or the requirements of Law No. 44-FZ. This was confirmed by the courts in another case. It is the bank that ensures that the guarantee meets the requirements of the legislation;
2. the winner made preparations to receive income. He purchased goods and services related to the execution of the contract;
3.non-compliance with the guarantee is the only reason for refusal to conclude a contract;
4. after the refusal, the winner did not do nothing, but tried to protect his interests. In particular, he appealed to the Federal Antimonopoly Service to challenge the customer's decision.
The cassation upheld the appeal. The Supreme Court of the Russian Federation did not review the case.
Document: Definition of the Armed Forces of the Russian Federation of 25.11.2021 N 301-ES21-21630