Bid guarantee

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With the bid bond (or Bietungsbürgschaft ; English tender bond bid bond, , French garantie de soumission , Austria: Vadium : Switzerland, bid bond ) takes over the issuing guarantor or surety , the liability that the contractor (bidder) at a tender at all times meet the tender conditions can, in particular can pay a contractual or contractual penalty if he does not fulfill his obligations assumed when submitting the offer or if he does not sign the contract after the award of the contract.

General

In the case of all tenders with higher order sums, the contracting authority is exposed to the financial risk that the contractor who won the tender procedure is unable or unwilling to carry out the order according to the tender for various reasons. The client wants to protect himself against the damage that the other offers are no longer binding due to the award of the contract to the successful but creditworthy contractor and the tender has therefore failed. To reduce this risk, the tendering conditions often provide for the provision of bid guarantees. They are intended to secure possible claims for damages on the part of the client if the bidder rejects the conclusion of the contract despite the award of the tender or causes a breach of contract despite the conclusion of the contract . Simultaneous performance guarantees are intended to protect the obligee against the non-performance of a contract. Bid guarantees usually amount to between 2% and 10% of the order amount.

In German enforcement law , the amount of the security deposit is set at 10% of the market value ( Section 68 (1) ZVG ) and can also be provided in the form of an unlimited, unconditional and absolute guarantee from a credit institution ( Section 69 (3) ZVG). Only those who can provide the legally required security deposit can take part in public foreclosures.

Tender conditions

Tenderers must meet the following tender conditions when participating in public tenders:
The bidder must

In this way, the tendering agency or the auctioneer want to ensure that some of the risks associated with the tendering process are covered in advance of the award of the contract. This includes, in particular, the payment of a contractual or contractual penalty in the event that the contractor cannot or does not want to fulfill his obligations arising from the tender, withdraws the order or does not accept the contract if the bid is accepted .

However, some of the risks mentioned cannot and should not be covered by a bid bond. Only after the bid bond has expired will it become clear whether the contractor is even able to implement a complex and time-consuming project according to the contract. It is doubtful whether a bid guarantee can prove the general creditworthiness or solvency of a bidder. If he becomes insolvent during the project phase , this risk is usually not covered by the bid bond. For this purpose it is a performance bond .

Legal issues

The bid bond / bond is a sub-form of the guarantee or surety . The latter is regulated in § 765 ff. BGB , which applies to the bid bond. The guarantee replaces the surety in international credit transactions , but is not regulated in the BGB, but permissible according to § § 311 Paragraph 1 BGB, § 241 Paragraph 1 BGB. The BGB provisions on the guarantee cannot be applied analogously to the guarantee; rather, the rest of the law of obligations applies analogously . The guarantor unilaterally undertakes in the informal guarantee contract to either take responsibility for future damage / loss regardless of fault or to accept liability for a specific economic success. In contrast to the guarantee, this is an abstract liability that is assumed independently in addition to the main debt, even if the latter no longer exists for legal reasons. In the case of a guarantee, the guarantor has to position the obligee as if the damage had not occurred or the guaranteed success had occurred. The difference between the two is that the bid bond is no- fault- dependent and a bid bond is dependent on the debtor's fault .

The guarantor sometimes has to orient himself in the design of his guarantee certificate to the specifications of the client. This is often the case with the bid bond because the tendering body provides detailed information on the guarantee to be given by the bidder in its terms and conditions. A clause can provide that the bid bond is automatically converted into a contract performance bond / performance bond in favor of the tendering agency after the bid has been accepted .

Legal consequences

The warranty occurs in one if the contractor has indeed been awarded the contract, he has not, or not signed the contract on time, in debt after signing the contract a penalty and / or he has failed, for the timely position of the fulfillment or performance bond to ensure . The resulting claims for damages by the client are ultimately secured by the bid guarantee. The client may only request the amount of the guarantee if the main secured liability exists and the collateral event agreed or assumed by the contracting parties has occurred. Then the client only has to assert what was the payment condition of the guarantee (so-called formal guarantee case ). Furthermore, except in the case of a guarantee on first request , the obligee must prove the conclusiveness of the main claim (so-called material guarantee case ). He has to prove that the claim secured by the guarantee is due. If the prerequisites are met, the obligee may claim the credit institution or the insurance from the given bid bond for cash payment.

Then the bank or the insurance company under the guarantee is obliged to make payment. With the payment of the guarantee according to § 774 Paragraph 1 BGB, the claim of the obligee against the main debtor is transferred to the surety by virtue of law ( legal session ), the guarantee is based on a claim for reimbursement of expenses from § 670 BGB.

termination

The duration of the bid bond is limited to the duration of the tendering process. The tendering process or the auction ends when the tendering period has expired and someone from among the applicants has been awarded the contract. At this point in time, the tendering agency is obliged to release the bank or the insurance company from its contingent liability by returning the original of the bid bond.

Demarcation

The bid guarantee must not be confused with the bid guarantee, which comes into play in the case of the foreclosure of real estate .

International

In Austrian procurement law, the Vadium serves as a guarantee in the event that the bidder withdraws from his offer during the award period (1.11.1.1 of ÖNORM A 2050). As a rule, it was not allowed to exceed 5% of the estimated order value (Section 86 BVergG, no longer applicable in August 2018). If the client has requested a Vadium, proof of its submission must be enclosed with the offer. The lack of such evidence necessarily leads to withdrawal from the award procedure. In Switzerland , the offer guarantee is a sub-form of the guarantee contract, which is classified as a “contract at the expense of a third party” ( Art. 111 OR ).

Individual evidence

  1. ^ Johannes CD Zahn, Payment and Payment Security in Foreign Trade , 1976, p. 254
  2. ↑ Peter Rösler / Thomas Mackenthun / Rudolf Pohl, Handbook of Credit Business , 2002, p. 222
  3. ^ Franz-Joseph Busse, Fundamentals of operational finance , 2003, p. 319
  4. ↑ BGH NJW 1967, 1020
  5. ↑ BGH NJW 1973, 884
  6. ↑ BGH WM 1999, 779
  7. ↑ BGH NJW 1985, 2941
  8. ↑ W. Fischbein, Practice of the international tendering business (tender business) , 1984, p. 22
  9. ^ Georg Walldorf (Ed.), Gabler Lexikon Auslands -shops , 2000, p. 101
  10. ^ Friedrich Graf von Westphalen / Brigitta Jud (ed.), The bank guarantee in international trade , 2005, p. 438
  11. ↑ BGH NJW 1984, 2456 , 2457
  12. ↑ BGH NJW 1997, 1435
  13. ↑ Friedrich Graf von Westphalen / Brigitta Jud (eds.), The bank guarantee in international trade , 2014, §§ 675, 670 BGB, marginal no. 113
  14. ↑ BGBl. For the Republic of Austria 1994, 417
  15. ↑ Supreme Court decision of June 6, 1991, reference number 6Ob564 / 91
  16. ↑ Ulrike Sehrschön: Procurement Law II: Necessary content of the offer. Retrieved on January 2, 2017.