The supplier refused to fulfill the contract. What should the customer do? The amount of the penalty for underdelivered goods The supplier underdelivered the goods under 44 fz

In this article, we will talk about what threatens the supplier with non-compliance with the deadlines for fulfilling obligations when participating in public procurement under 44-FZ, what are the consequences of non-compliance with the deadlines government contract according to 44-FZ. For simplicity, in this article we will talk more about the supply of goods, although work contracts in this case are governed by the same rules, unless otherwise indicated.

Remember, if you have a dispute with a customer about the timing of the execution of a government contract, the consequences can be very unpleasant. It is for these purposes that we have developed a special service for our customers -.

Penalties for non-compliance with the terms of the state contract

First of all, in state contracts, as in any other contracts, penalties are prescribed in accordance with paragraph 4 of Article 34 of the 44-FZ. In accordance with paragraph 5 of Article 34 of the 44-FZ, they consist of a penalty for each day of delay in the delivery of goods and a fine for improper fulfillment of the terms of a state contract, which depends more on the customer's imagination. This may be a penalty for failure to assemble, for each fact of marriage or incomplete delivery.

Reducing the penalty in case of delay in the execution of a state contract

The courts, as a rule, do not subsequently listen to the supplier's requests to reduce the penalty in accordance with Article 333 of the Civil Code of the Russian Federation, you will have to pay the penalty and the fine in full, since you were familiarized with the draft contract, agreed to fulfill all the conditions of delivery, and you also signed the state contract voluntarily. Although the Supreme Arbitration Court provides for the possibility of reducing a penalty that is clearly disproportionate to losses, even if its amount is determined by law.

An example here is the decision of the Eleventh Arbitration Court of Appeal dated May 30, 2013 in case No. A55-30801 / 2012, according to which the penalty was collected in full, and the supplier’s argument about limiting competition by setting the delivery time of goods at 1 day did not find a response at all from side of the court. This is logical, because, by submitting an application, the supplier agreed to fulfill all the conditions specified in the notice.

We discussed in detail the reduction of delivery times as a measure to limit competition in public procurement in another article.

Judicial practice to reduce the penalty for delay under a state contract

However, there are other, very interesting examples: the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 17, 2013 No. 12945/13. In this case, the amount of the penalty greatly (442 times) exceeded the size of the refinancing rate, while the amount of the penalty charged to the customer for late payment to the supplier coincided with the refinancing rate. The court drew attention to this fact and to the arguments of the defendant that numerous similar state contracts have a much smaller penalty, and the customer did not suffer losses and did not prove his significant difficulties from the delay in fulfilling the order. Clause 1 of Article 124 of the Civil Code of the Russian Federation says that public entities act in civil law relations on an equal footing with other individuals and legal entities, which implies a certain balance of liability measures, and the idea of a contract system in the field of public procurement does not aim to replenish state budget through punitive penalties. The decision of the Federal Arbitration Court of the Moscow District of February 18, 2014 in case No. A40-168183 / 12-151-1326 is based on the same arguments.

A similar example is the decision of the Federal Arbitration Court of the Moscow District dated July 16, 2014 in case No. A41-49061 / 13, in which the court met the supplier halfway, relying on the fact that the penalty is too high relative to annual rate refinancing by 360 times, the total amount of the penalty was 60% of the contract value, while the customer did not provide evidence of losses from the delay in the performance of the contract. The decision was based on Art. 10 of the Civil Code of the Russian Federation on the inadmissibility of exercising civil rights solely with the intent to harm another person and abuse the right. The penalty of such big size recognized as unjust enrichment.

Thus, with a significant excess of the penalty over the refinancing rate, it is still possible to prove its groundlessness in court, based on the principle of legal equality, enshrined in paragraph 1 of article 1 of the Civil Code of the Russian Federation.

Statutory penalty for late government contract

As a result of the frequent occurrence of such cases, Federal Law No. 396 of December 28, 2013 amended the Federal Law “On the contract system in the field of procurement ...” obliging the customer to establish penalties in accordance with the Procedure specified in Decree of the Government of the Russian Federation No. 1063 on November 25 2013. This procedure introduced significant certainty in the amount of penalties and fines. The fine is set as a progressive percentage of the contract amount, and the penalty corresponds to 0.003-0.01 of the refinancing rate for each day of delay. There is another very important point: the penalty in the state contract is charged not for the entire amount of the contract, but for that part of the obligations that was not fulfilled on time. This is directly stated in paragraph 7 of Article 34 of the 44-FZ and in the new order. There is also a Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 15, 2014 No. 5467/14 on this subject.

Register of unscrupulous suppliers in case of delay in the state contract

In addition to penalties, the supplier, if delivery is not completed on time, has another risk: in accordance with clause 2 of Article 104 of 44-FZ, a supplier whose state contract was terminated by a court decision or as a result of a unilateral refusal of the customer due to a material breach of the terms of the contract , must be entered in the register of unscrupulous suppliers. In accordance with paragraph 9 of Article 95 of 44-FZ, the customer has the right to unilateral refusal to perform the contract in accordance with the Civil Law, if this was provided for by the contract. However, the notion of a material breach of contract is evaluative.

Essential Conditions for Violating a State Contract

The timing of the contract is one of the most common reasons for government customers and suppliers to go to court. The court recognizes as a material violation such a violation, as a result of which the party suffered damage, as a result of which it is largely deprived of what it could claim if the contract was properly performed, in accordance with paragraph 2 of Article 450 of the Civil Code of the Russian Federation.

In accordance with paragraph 1 of Article 708 of the Civil Code of the Russian Federation, the timing of the work is an essential condition of the work contract, in accordance with Article 506 of the Civil Code of the Russian Federation, the timing of the delivery of goods is an essential condition of the supply contract. Clause 2 of Article 715 of the Civil Code of the Russian Federation tells us that violation of the deadlines for the completion of work is a significant violation and entitles the customer to unilaterally refuse to execute the contract. As for the delivery of goods, Clause 2 of Article 523 of the Civil Code of the Russian Federation establishes as a significant violation, sufficient for the unilateral refusal of the customer to fulfill the contract, only repeated violation of the terms of delivery of goods. In one of the following articles, we will tell you which ones exist.

Litigation on the delay in government contracts

There is a huge amount judgments under which government contracts were terminated due to delays in the performance of work. It is also worth noting that although the opinions of the courts differ, more often a penalty is collected even if the contract is terminated, since the termination of the contract leads to the termination of obligations for the future, but does not deprive the creditor of the right to recover the amount of the principal debt from the debtor and impose property sanctions on him . However, in our opinion, it is very important to pay attention to the decision of the Presidium of the Supreme Arbitration Court dated April 12, 2011 No. judicial order, it is necessary to provide evidence of the damage caused in accordance with Article 450 of the Civil Code of the Russian Federation. In addition, it is important for the customer to comply with the procedure defined by Article 95 of the 44-FZ.

As you can see, on the one hand, the consequences of violating the deadlines for the execution of a state contract for a supplier are rather sad, but there are a lot of nuances that allow these consequences to be avoided. The positions of the courts on each of these nuances are twofold, for a positive decision, a serious study of each specific case is required, in your arguments every word will be decisive, therefore we strongly recommend that you turn to professionals in this field. The specialists of our company will help you, and.

Claim workaccording to 44-FZ (Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" dated 05.04.2013 No. 44-FZ) is carried out both for the purpose of collecting fines / penalties from negligent suppliers, and for presenting them claims in the future. It is the claim work, although it is not spelled out directly in the law, that makes it possible to identify and restore the violated rights of the customer. Our article will tell about the features of its conduct.

Claim work under contracts

A claim is understood as written (which provides greater probative value) requirements of the customer to the contractor in case of detection of shortcomings in the goods (services) supplied or improper performance of contract obligations. Claim work is carried out at the pre-trial stage of proceedings and begins with the collection of evidence of non-fulfillment of the provisions of the contract, which will be stated in the claim.

This document is compiled in the following cases:

violations related to the timing, volume, range of supplies (services);
low quality of work performed (services provided, goods supplied);
instructions of the inspection bodies on non-fulfillment of a part of the contract;
other violations of contractual terms.

Conducting claims work is a prerequisite for the judicial settlement of most civil law disputes in arbitration courts (part 5 of article 4 of the APC of the Russian Federation), i.e., a claim for proceedings is accepted only subject to the pre-trial procedure for resolving disagreements under the contract. This requirement fully applies to disputes arising in the course of the execution of government contracts.

Features of claims work in the light of the law on the contract system

According to part 3 of Art. 94 of Law No. 44-FZ, the interaction of the customer with the supplier in case of violation of the terms of the contract by one of them or the application of liability measures in case of non-fulfillment of the conditions is also included in the set of measures for placing an order. The customer is obliged by law to control the actions of the supplier related to compliance with the agreements (Article 101). The contract itself must include a condition on the responsibility of the parties to the contract for improper performance or failure to fulfill the obligations assumed (part 4 of article 34).

Yes, Art. 34 of Law No. 44-FZ directly indicates the right of the customer to demand from the supplier in the event of:

improper performance of contractual conditions - a fine (a fixed amount);
delay in fulfillment of contractual obligations - penalties (1/300 of the rate of the Central Bank of the Russian Federation from the overdue unpaid amount per day).

In this case, in any case, in case of non-fulfillment of the contract or part of it, the customer must send the supplier a claim demanding payment of a penalty (part 6 of article 34).

Claim work in the execution of the contract

The very next day after the discovery of the fact of non-performance or delay in the performance of the contract, the customer has the right to send a request to the counterparty that he either eliminate the shortcomings or transfer money to pay the penalty.

Directly in the claim are indicated:

a detailed description of the essence and reasons for the customer's requirements with references to the relevant contract terms and regulations;
the maximum term for eliminating deficiencies (responding to a claim), indicating the right of the customer to go to court in case of violation of these terms (usually, a response is given from 10 to 30 days);
calculation of a penalty fee or an indication of the amount of a fine with a justified full calculation;
other information that will contribute to the prompt compulsion of the counterparty to fulfill its obligations;
details of the applicant and counterparty;
a list of documents attached to confirm the legitimacy of the requirements.

Requirements are expressed in arbitrary writing, while they should not be expressed in the subjunctive mood, making their performance dependent on any conditions. The document is dated and signed by an authorized person. Copies or extracts from documents (less often - originals) are attached to it. You do not need to attach a copy of the contract, as the other party already has it.

The claim is handed over against receipt to the recipient or sent to him by registered mail. If, after the deadline for responding to a claim, the unfair counterparty does not respond in any way, the applicant has the right to file a claim with the court.

Claim work in case of unilateral termination of the contract

The parties have the right to terminate the concluded contract by agreement between themselves or through the court. In addition, according to part 9 of Art. 95 of Law No. 44-FZ, the customer can apply unilateral termination of the contract (more precisely, refuse to perform the contract, as a result of which it will be considered terminated) while simultaneously observing 2 conditions:

This possibility is indicated directly in the contract.
There are reasons, the presence of which, by virtue of the norms of the Civil Code of the Russian Federation, allows one of the parties to refuse to fulfill the contract (for example, in case of repeated delay in deliveries, in accordance with Article 523 of the Civil Code).

If the customer, on the grounds provided above, refuses to perform the contract or part of it, he, within 3 working days:

Places in a single information system notice of this decision.
Sends a notice to the counterparty of its decision. It is advisable to do this by registered mail with acknowledgment of receipt, although other methods of communication that allow you to record the fact of information transfer are also possible.

After 10 days from the date of notification of the supplier, such contract is considered terminated. However, the customer will be obliged to cancel the unilateral termination if, within the notice period, the supplier has eliminated those defects in the contract for which the claim was made.

Features of claim work when applying penalties to the supplier

As noted above, Law No. 44-FZ obliges the customer to send a penalty claim to the supplier in case of improper performance of obligations under the contract. However, if there is an imperative obligation to declare shortcomings in the performance of the contract, the law does not link the presentation (or non-presentation) of this requirement with the recovery of a penalty (clause 1, article 330, clause 1, article 407 of the Civil Code of the Russian Federation).

In other words, the customer is obliged to report violations in the performance of the contract, but the very fact of the declaration does not mean the automatic collection of a penalty. That is why it is possible to declare in one demand the occurrence of a penalty and its deduction from the contract price only if this is expressly provided for by the contract itself. Thus, the customer will simultaneously comply with the provisions of Law No. 44-FZ on sending claims and notify the negligent counterparty of the use of his right to penalties and fines.

Application of interim measures in case of non-fulfillment of the terms of the contract

The following are recognized as security for the performance of a contract (Part 3, Article 96 of Law No. 44-FZ):

bank guarantee;
funds deposited into the customer's account.

The concept of "execution of the contract" in relation to security includes, among other things, the application of liability measures, modification and termination of the contract. That is, ensuring the performance of a contract is an action aimed at compensating for losses in case of non-performance or improper performance by the parties of the contractual terms.

IMPORTANT! From the amount of security, the customer can withhold only the amount of penalties provided for by the terms of the contract.

In case of non-fulfillment of the contract or its improper implementation, the creditor may demand damages from the debtor (Article 393.1 of the Civil Code of the Russian Federation). Based on the rules on enforcement of the contract, the customer can cover the losses associated with its termination, under the terms of Art. 393.1 of the Civil Code of the Russian Federation.

As you can see, claim work under Law No. 44-FZ covers a wide range of situations. At the same time, in most cases, the general principles provided for by civil law apply to such work, although there are some exceptions.

Guide to the contract system:

A Guide to Procurement Disputes:

1. The contract is concluded on the terms stipulated by the notice of procurement or an invitation to take part in the determination of the supplier (contractor, performer), procurement documentation, application, final offer of the procurement participant with whom the contract is concluded, except for cases in which, in accordance with This Federal Law does not provide for a notice of a procurement or an invitation to participate in the selection of a supplier (contractor, performer), procurement documentation, an application, or a final offer. In the case provided for by Part 24 of Article 22 of this Federal Law, the contract must contain the procedure for determining the quantity of goods supplied, the volume of work performed, services rendered based on the customer's requests.

2. When concluding a contract, it is indicated that the price of the contract is fixed and is determined for the entire period of performance of the contract, and in the case provided for by Part 24 of Article 22 of this Federal Law, the prices of units of goods, work, services and the maximum value of the contract price are indicated, as well as in cases established by the Government Russian Federation, the estimated value of the contract price or the price formula and the maximum value of the contract price set by the customer in the procurement documentation are indicated. When concluding and executing a contract, changing its terms is not allowed, except for the cases provided for by this Article and Article 95 of this Federal Law. If the draft contract provides for separate stages of its execution, the price of each stage is set in the amount reduced in proportion to the decrease in the initial (maximum) price of the contract by the procurement participant with whom the contract is concluded.