Contract increase by 10. Base of decisions and legal acts

It all depends on whether your institution is state-owned or budgetary or some other.

As stated in the Letter of the Ministry economic development RF

dated November 16, 2015 N D28i-3363 "On the application of the provisions federal law dated April 5, 2013 N 44-FZ "if the possibility was provided for by the procurement documentation and the contract, and in the case of procurement from a single supplier (contractor, performer) by the contract, it is allowed to change, by agreement of the parties, the essential terms of the contract during its execution in the event that, at the suggestion of the customer, the quantity of goods supplied, the volume of work performed or services provided are reduced by no more than ten percent. At the same time, by agreement of the parties, a change is allowed, taking into account the provisions of the budget legislation Russian Federation the price of the contract in proportion to the additional quantity of goods, additional volume of work or service based on the price of a unit of goods, work or service established in the contract, but not more than ten percent of the contract price. When reducing the quantity of goods, volume of work or service provided for by the contract, the parties to the contract are obliged to reduce the price of the contract based on the unit price of the goods, work or service (subparagraph "b" of paragraph 1 of part 1 of Article 95 of Law N 44-FZ).

At the same time, the Government of the Russian Federation approved a methodology, in accordance with which, in accordance with paragraph 6 of Part 1 of Art. 95 of Law N 44-FZ, in cases where the quantity of goods, the volume of work or services is reduced, while the price of the contract is reduced. On the basis of this norm, Decree of the Government of the Russian Federation of November 28, 2013 N 1090 approved the Methodology for reducing the number of goods, volumes of work or services with a decrease in the price of the contract, which, in accordance with its paragraph 1, determines the procedure for reducing the number of goods, volumes of work or services with a decrease in the price of public (municipal) contract in accordance with the reduction in accordance with paragraph 6 of Art. 161 of the RF BC previously communicated to a state or municipal customer as a recipient budget funds relevant limits budget commitments in the cases provided for in paragraph 6 of part 1 of this article.

In addition, it is envisaged that the reduction in the quantity of goods supplied, the volume of work performed or services provided is carried out based on the price of the state (municipal) contract to be reduced, and the need to maintain profit as part of the price in an amount not exceeding 1 percent of the costs of the supplier (executor, contractor) to pay for purchased components (semi-finished products) and works (services) and 20 percent of other costs under the state (municipal) contract.

However, based on paragraph 6 of Art. 161 of the RF BC, rule p. 6, part 1, art. 95 of Law N 44-FZ applies to contracts where the customer is a public institution.

Even if you apply Part 1 of Art. 95 of Law N 44-FZ, in which it is permissible to change the essential terms of the contract, incl. pp. “b”, paragraph 1, then the possibility of changing the essential terms of the contract is conditioned by the simultaneous fulfillment of the following conditions:
1) the possibility of change is provided for by the procurement documentation and the contract;
2) the initiative to make changes comes from the customer;
3) the number of goods supplied, the volume of work performed (services rendered) increases by no more than 10%.

In any case, you need to read the documentation. Contact a lawyer. Legal services now available at your location.

1. Changing the essential terms of the contract during its execution is not allowed, except for changing them by agreement of the parties in the following cases:

1) if the possibility of changing the terms of the contract was provided for by the procurement documentation and the contract, and in the case of procurement from a single supplier (contractor, performer) by the contract:

A) when the price of the contract is reduced without changing the quantity of goods, the volume of work or services provided for by the contract, the quality of the goods supplied, the work performed, the service provided and other conditions of the contract;

B) if, at the suggestion of the customer, the provisions of the contract are increased (with the exception of the contract, the subject of which is the performance of construction, reconstruction, overhaul, demolition of the object capital construction, carrying out work to preserve cultural heritage sites) the quantity of goods, the volume of work or services by no more than ten percent, or the quantity of the goods supplied, the volume of work performed or the services provided are reduced by no more than ten percent. At the same time, by agreement of the parties, it is allowed to change, taking into account the provisions of the budgetary legislation of the Russian Federation, the price of the contract in proportion to the additional quantity of goods, additional volume of work or service based on the price of a unit of goods, work or service established in the contract, but not more than ten percent of the contract price. When reducing the quantity of goods, volume of work or service provided for by the contract, the parties to the contract are obliged to reduce the price of the contract based on the unit price of the goods, work or service. The price of a unit of additionally delivered goods or the price of a unit of goods in case of a decrease in the quantity of goods supplied under the contract must be determined as the quotient of dividing the initial price of the contract by the quantity of such goods provided for in the contract;

C) when changing the volume and (or) types of work performed under the contract, the subject of which is the construction, reconstruction, overhaul, demolition of a capital construction object, work to preserve cultural heritage sites. At the same time, it is allowed to change, taking into account the provisions of the budgetary legislation of the Russian Federation, the contract price by no more than ten percent of the contract price;

2) if the price of a contract concluded to meet federal needs for a period of at least three years is or exceeds the price established by the Government of the Russian Federation, and the execution of the said contract is impossible due to circumstances beyond the control of the parties to the contract without changing its terms, these terms may be changed to based on the decision of the Government of the Russian Federation;

3) if the price of a contract concluded to meet the needs of a constituent entity of the Russian Federation for a period of at least three years is or exceeds the price established by the Government of the Russian Federation, and the execution of the said contract is impossible due to circumstances beyond the control of the parties to the contract without changing its terms, these conditions may be changed on the basis of a decision of the highest executive body of state power of a constituent entity of the Russian Federation;

4) if the price of a contract concluded to meet municipal needs for a period of at least one year is or exceeds the price established by the Government of the Russian Federation, and the execution of the said contract is impossible due to circumstances beyond the control of the parties to the contract without changing its terms, these terms may be changed on the basis of decisions of the local administration;

5) change in accordance with the legislation of the Russian Federation of regulated prices (tariffs) for goods, works, services;

(see text in previous edition)

6) in the cases provided for by paragraph 6 of Article 161 of the Budget Code of the Russian Federation, with a decrease in the limits of budget obligations previously communicated to the state or municipal customer as a recipient of budgetary funds. At the same time, the state or municipal customer, during the execution of the contract, ensures the agreement of new terms of the contract, including the price and (or) terms of the contract and (or) the quantity of goods, scope of work or services provided for by the contract;

7) in case of conclusion of a contract with foreign organization for the treatment of a citizen of the Russian Federation outside the territory of the Russian Federation, the price of the contract may be changed if the list of services related to the treatment of a citizen of the Russian Federation is increased or decreased for medical reasons, if this opportunity was provided for by a contract with a foreign organization;

8) if during the execution of a contract concluded for a period of at least one year, the subject of which is the performance of construction, reconstruction, overhaul, demolition of a capital construction object, work to preserve cultural heritage objects, the price of which is equal to or exceeds the maximum amount ( limit dimensions) the price set by the Government of the Russian Federation, circumstances beyond the control of the parties to the contract have arisen that make it impossible to fulfill it, including the need to amend the project documentation. The change provided for by this paragraph is carried out if there is writing substantiation of such a change on the basis of a decision of the Government of the Russian Federation, the highest executive body of state power of a constituent entity of the Russian Federation, local administration in the course of procurement for federal needs, the needs of a constituent entity of the Russian Federation, municipal needs, respectively, and provided that such a change does not lead to an increase in the term of the contract and (or) the contract price by more than thirty percent. At the same time, the specified period does not include the period for obtaining a positive expert opinion in accordance with the legislation on urban planning activities. project documentation if it is necessary to make changes to it;

9) if the contract, the subject of which is the performance of works on the construction, reconstruction, overhaul, demolition of a capital construction object, work on the preservation of cultural heritage objects, due to circumstances beyond the control of the parties to the contract, entailing the impossibility of its execution, including the need to amend project documentation, or due to the fault of the contractor is not executed within the period specified in the contract, a single change in the period for the execution of the contract is allowed for a period not exceeding the period for the performance of the contract provided for at its conclusion. In this case, if the enforcement of the contract is carried out by depositing funds, by agreement of the parties, it is determined new term return by the customer to the contractor of funds contributed as security for the performance of the contract. In case of failure to perform the contract on time due to the fault of the contractor, the change of the period provided for in this clause is carried out provided that there are no unfulfilled claims by the contractor for the payment of penalties (fines, penalties) presented by the customer in accordance with this Federal Law, the contractor provides security for the performance of the contract in accordance with this Federal Law ;

(see text in previous edition)

2. In the cases established by clause 6 of part 1 of this article, the reduction in the quantity of goods, the volume of work or services while reducing the price of the contract is carried out in accordance with the methodology approved by the Government of the Russian Federation.

3. In the cases specified in clause 6 of part 1 of this article, the adoption by the state or municipal customer of a decision to change the contract in connection with a reduction in the limits of budgetary obligations is carried out on the basis of the proportionality of the change in the price of the contract and the quantity of goods, volume of work or service.

4. In the event of the occurrence of circumstances that are provided for in clause 6 of part 1 of this article and make it impossible for the state or municipal customer to fulfill the budgetary obligations arising from the contract, the customer proceeds from the need to fulfill, as a matter of priority, the obligations arising from the contract, the subject of which is the supply of goods, necessary for normal life support (including food, funds for the provision of an ambulance, including specialized ambulance, medical care in an emergency or emergency form, medicines, fuel), and (or) for which the supplier (contractor, performer) has fulfilled the obligations.

5. When executing a contract, it is not allowed to change the supplier (contractor, performer), except if the new supplier (contractor, performer) is the successor of the supplier (contractor, performer) under such a contract as a result of reorganization legal entity in the form of a transformation, merger or acquisition.

6. In the event of a change of the customer, the rights and obligations of the customer, provided for by the contract, are transferred to the new customer.

7. When executing a contract (with the exception of cases provided for by regulatory legal acts adopted in accordance with Part 6 of Article 14 of this Federal Law), upon agreement between the customer and the supplier (contractor, performer), it is allowed to supply goods, perform work or provide services, quality, technical and functional characteristics (consumer properties) of which are improved in comparison with the quality and corresponding technical and functional characteristics specified in the contract. In this case, the appropriate changes must be made by the customer in the register of contracts concluded by the customer.

(see text in previous edition)

8. Termination of the contract is allowed by agreement of the parties, by a court decision, in the event of a unilateral refusal of the contracting party to execute the contract in accordance with civil law.

9. The customer has the right to decide on a unilateral refusal to perform the contract on the grounds provided for by the Civil Code of the Russian Federation for a unilateral refusal to perform certain types obligations, provided that it was provided for in the contract.

(see text in previous edition)

10. The customer has the right to conduct an examination of the delivered goods, work performed, services rendered with the involvement of experts, expert organizations before making a decision on the unilateral refusal to execute the contract in accordance with part 8 of this article.

11. If the customer has carried out an examination of the delivered goods, performed work or rendered service with the involvement of experts, expert organizations, the decision on unilateral refusal to perform the contract can be made by the customer only on condition that, based on the results of the examination of the delivered goods, performed work or rendered service, in conclusion expert, expert organization, violations of the terms of the contract will be confirmed, which served as the basis for the unilateral refusal of the customer to fulfill the contract.

12. The decision of the customer on the unilateral refusal to perform the contract no later than within three working days from the date of the adoption of the said decision is placed in a single information system and sent to the supplier (contractor, performer) by registered mail with acknowledgment of receipt to the address of the supplier (contractor, performer) specified in the contract, as well as by telegram, or by facsimile, or to the address Email, or using other means of communication and delivery that ensure that such a notification is recorded and the customer receives confirmation of its delivery to the supplier (contractor, performer). The fulfillment by the customer of the requirements of this part is considered to be a proper notification of the supplier (contractor, performer) of the unilateral refusal to perform the contract. The date of such proper notification is the date of receipt by the customer of confirmation of delivery of the specified notice to the supplier (contractor, performer) or the date of receipt by the customer of information about the absence of the supplier (contractor, performer) at his address specified in the contract. If it is impossible to obtain the specified confirmation or information, the date of such proper notification is the date thirty days after the date of placement of the customer's decision on the unilateral refusal to perform the contract in the unified information system.

(see text in previous edition)

13. The decision of the customer on the unilateral refusal to perform the contract comes into force and the contract is considered terminated ten days from the date of the customer's proper notification of the supplier (contractor, performer) of the unilateral refusal to perform the contract.

14. The customer is obliged to cancel the decision on unilateral refusal to perform the contract that has not entered into force if, within a ten-day period from the date of proper notification of the supplier (contractor, performer) about decision on unilateral refusal to perform the contract, the violation of the terms of the contract that served as the basis for the said decision was eliminated, and the customer was compensated for the costs of the examination in accordance with part 10 of this article. This rule does not apply in case of repeated violation by the supplier (contractor, performer) of the terms of the contract, which, in accordance with civil law, are the basis for the unilateral refusal of the customer to perform the contract.

15. The customer is obliged to make a decision on unilateral refusal to perform the contract in the following cases:

1) if during the execution of the contract it is established that the supplier (contractor, performer) and (or) the supplied goods do not comply with the established notice of procurement and (or) procurement documentation with the requirements for procurement participants and (or) the supplied goods or provided false information on its compliance and (or) compliance of the supplied goods with such requirements, which allowed it to become the winner in determining the supplier (contractor, performer);

2) if in the course of the execution of a contract concluded in accordance with Clause 47 of Part 1 of Article 93 of this Federal Law for the supply of goods, the production of which was created or modernized and (or) mastered in the territory of the Russian Federation in accordance with a special investment contract, such a special investment contract is terminated . In this case, the termination of the contract concluded in accordance with paragraph 47 of paragraph 1 of Article 93

a) special side investment contract, which concluded such a contract on behalf of the Russian Federation (the Russian Federation along with the subject of the Russian Federation and (or) municipality), sends, within ten working days from the date of its termination, a notice of the said termination to customers who, in accordance with Clause 47 of Part 1 of Article 93 of this Federal Law, have concluded contracts for the supply of goods, the obligations under which have not been fulfilled as of the date of sending such a notice. Notice of termination of the special investment contract is sent to customers by registered mail with acknowledgment of receipt to the customers' addresses specified in the contracts. The list of relevant customers is determined on the basis of information contained in the register of contracts concluded by customers;

b) customers no later than three working days from the date of receipt of the specified in subparagraph "a" paragraph 47 of paragraph 1 of Article 93

subparagraph "b" of this paragraph, is carried out in accordance with general order provided for in this article;

3) if in the course of the execution of a contract concluded in accordance with Clause 48 of Part 1 of Article 93 of this Federal Law for the supply of goods, the production of which was created or modernized and (or) mastered in the territory of a constituent entity of the Russian Federation in accordance with a state contract concluded in accordance with Article 111.4 of this Federal law, such a state contract is terminated. At the same time, the termination of the contract concluded in accordance with clause 48 of part 1 of Article 93 of this Federal Law is carried out in next order:

a) side government contract, which has concluded such a contract on behalf of a constituent entity of the Russian Federation in accordance with Article 111.4 of this Federal Law, within ten working days from the date of its termination, notices of the said termination to customers who have concluded contracts in accordance with Clause 48 of Part 1 of Article 93 of this Federal Law, obligations under which have not been fulfilled as of the date of sending such notifications. A notice of termination of a state contract concluded in accordance with Article 111.4 of this Federal Law shall be sent to customers by registered mail with acknowledgment of receipt at the customer's addresses specified in the contracts. The list of relevant customers is determined on the basis of information contained in the register of contracts concluded by customers;

b) customers within three working days from the date of receipt of the notification specified in subparagraph "a" of this paragraph are obliged to make a decision on the unilateral refusal to execute the contract concluded in accordance with paragraph 48 of part 1 of Article 93 of this Federal Law;

c) termination of the contract after the decision referred to in subparagraph "b" of this paragraph is made in accordance with the general procedure provided for in this article.

(see text in previous edition)

16. Information about the supplier (contractor, performer), with whom the contract was terminated due to the unilateral refusal of the customer to perform the contract, is included in the procedure established by this Federal Law in the register of unscrupulous suppliers (contractors, performers).

17. In case of termination of the contract in connection with the unilateral refusal of the customer to perform the contract, the customer has the right to purchase goods, work, services, supply, performance, the provision of which was the subject of the terminated contract, in accordance with the provisions of Part 14 of Article 83.2 of this Federal Law) and subject to the consent of such a procurement participant to conclude a contract. The specified contract is concluded in compliance with the conditions provided for by Part 1 of Article 34 of this Federal Law, taking into account the provisions of Part 18 of this Article, and after the procurement participant provides the contract performance security in accordance with this Federal Law, if the requirement for contract performance security is provided for by the notice of procurement and ( or) purchase documentation. At the same time, upon termination of the contract (with the exception of the contract specified in Part 9 of Article 37 of this Federal Law) due to the unilateral refusal of the customer to perform the contract, the conclusion of a contract in accordance with this part is allowed if, in connection with such termination in accordance with Part 7 of Article 104 of this Federal Law, a decision was made to include information about the supplier (contractor, performer) with whom the contract was terminated in the register of unscrupulous suppliers (contractors, performers).

18. If prior to the termination of the contract the supplier (contractor, performer) partially fulfilled the obligations stipulated by the contract, when concluding a new contract, the quantity of goods supplied, the volume of work performed or services rendered must be reduced taking into account the quantity of goods supplied, the volume of work performed or service rendered under the terminated contract. At the same time, the price of the contract concluded in accordance with part 17 of this article must be reduced in proportion to the quantity of goods supplied, the volume of work performed or services rendered.

19. The supplier (contractor, performer) has the right to decide on a unilateral refusal to perform the contract on the grounds provided for by the Civil Code of the Russian Federation for the unilateral refusal to perform certain types of obligations, if the contract provided for the right of the customer to make a decision on the unilateral refusal to perform the contract.

(see text in previous edition)

20. The decision of the supplier (contractor, performer) to unilaterally refuse to execute the contract no later than within three working days from the date of such a decision is sent to the customer by registered mail with acknowledgment of receipt at the address of the customer specified in the contract, as well as by telegram , or by facsimile, or by e-mail, or using other means of communication and delivery that ensure that such a notice is recorded and the supplier (contractor, performer) receives confirmation of its delivery to the customer. The fulfillment by the supplier (contractor, executor) of the requirements of this part is considered to be a proper notification of the customer about the unilateral refusal to perform the contract. The date of such proper notification is the date of receipt by the supplier (contractor, performer) of confirmation of delivery of the said notification to the customer.

(see text in previous edition)

MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION

Department budget policy in the field of the contract system, having considered the appeal regarding the issue of increasing the price of the contract by more than 10%, as well as changing the type of work established in the estimate, reports the following.

In accordance with part 1 of Article 34 of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ), the contract is concluded for conditions stipulated by the notice of the procurement or the invitation to participate in the selection 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 Law N 44-FZ a notice of procurement or an invitation to participate in the selection of a supplier (contractor, performer), procurement documentation, an application, a final offer are not provided.

At the same time, in accordance with Part 2 of Article 34 of Law No. 44-FZ, when concluding a contract, it is indicated that the contract price is fixed and is determined for the entire period of the contract, and in cases established by the Government of the Russian Federation, the approximate value of the contract price or the price formula and the maximum value contract prices set by the customer in the procurement documentation. When concluding and executing a contract, changing its terms is not allowed, except for the cases provided for by the said article and article 95 of Law N 44-FZ.

According to subparagraph "b" of paragraph 1 of part 1 of article 95 of Law N 44-FZ, a change in the essential terms of the contract during its execution is allowed if, at the suggestion of the customer, the quantity of goods, scope of work or services provided for in the contract is increased by no more than ten percent or the stipulated contract, the quantity of goods supplied, the volume of work performed or services rendered by no more than ten percent. At the same time, by agreement of the parties, it is allowed to change, taking into account the provisions of the budgetary legislation of the Russian Federation, the price of the contract in proportion to the additional quantity of goods, additional volume of work or service based on the price of a unit of goods, work or service established in the contract, but not more than ten percent of the contract price.

When reducing the quantity of goods, volume of work or service provided for by the contract, the parties to the contract are obliged to reduce the price of the contract based on the unit price of the goods, work or service. The price of a unit of additionally delivered goods or the price of a unit of goods in case of a decrease in the quantity of goods supplied under the contract must be determined as the quotient of dividing the original price of the contract by the quantity of such goods provided for in the contract.

Given the above, if it is necessary for the customer to increase or decrease the scope of work provided for by the contract (if such a possibility was established by the procurement documentation), during the execution of the contract, it is possible to increase or decrease the scope of work for certain positions of the local budget calculation by no more than ten percent based on the price of a unit of work volume established in the contract. Wherein total cost the estimated calculation should be changed in proportion to the additional amount of work, but not more than ten percent.

If there is a need for types of work not provided for by the contract, such a purchase should be carried out by competitive methods for determining the supplier (contractor, performer) established by Law N 44-FZ.

On an increase in the contract price by more than 10% and a change in the type of work established in the estimate

Answer

Read the answer to the question in the article: If during the formation terms of reference we do not ask for specific indicators for nails, is it necessary to indicate the country of origin of the nails, and if we ask for specific indicators for paint, is it necessary to indicate the country?

Law No. 44-FZ establishes a strict procedure for changing the essential terms of a concluded contract. Therefore, if the customer has a need to change them, he needs to remember in which cases this can be done and in which it cannot.

In what cases it is possible to change the concluded contract

By general rule the parties to the contract are not entitled to change its essential terms, but there are a number of exceptions. The parties have the right to change the essential terms of the contract by agreement of the parties, if:

Thanks for taking the test.
We already know the result, find out for you ↓
Find out the result

1. It is necessary to reduce the price of the contract without changing the quantity of goods, the volume of work or services provided for by the contract, their quality and other conditions of the contract.

2. The customer proposed to increase or decrease the quantity of goods, work or services provided for in the contract no more than 10 percent . In this case, the parties, by agreement and taking into account the provisions of the budgetary legislation of Russia, have the right to change the price of the contract in proportion to the additional quantity of goods, volume of work or service based on the price of a unit of goods, work or service established in the contract, but not more than 10 percent of the contract price.

The price of a unit of additionally delivered goods or the price of a unit of goods in case of a decrease in the quantity of goods supplied under the contract must be determined as the quotient of dividing the original price of the contract by the quantity of such goods provided for in the contract.

Attention: it is possible to change the terms of the contract specified in paragraphs 1 and 2 if the customer in the contract and the procurement documentation, and when purchasing from a single supplier (contractor, performer) - in the contract provided for such an opportunity.

This will increase the amount of work on other types of work in the estimate, but not more than 10 percent. The price of the contract also should not be increased by more than 10 percent or 9,000.00 rubles.

If the customer is a government or state-financed organization and he has no limits for increasing the price, then he is not entitled to increase the scope of work and the price of the contract by 10 percent (Article 34 of the Budget Code of the Russian Federation).

Situation: is it possible to change the quantity of goods at the stage of concluding a contract in accordance with Article 95 of Law No. 44-FZ

No, the possibility of amending the terms of the contract on the basis of part 1 of article 95 of Law No. 44-FZ is provided for during its execution, that is, after its conclusion. The contract must be concluded on the terms stipulated by the notice of procurement or an invitation to take part in determining the supplier (contractor, performer), procurement documentation, application, final offer of the procurement participant with whom the contract is concluded (if such documents are provided in accordance with Law No. 44 -FZ) (part 1 of article 34 of Law No. 44-FZ).

And only after the contract is concluded (signed by the parties), it is necessary to form an additional agreement on reducing the quantity of goods on the basis of subparagraph "b" of paragraph 1 of part 1 of Article 95 of Law No. 44-FZ, if the possibility of changing the terms of the contract was provided for by the procurement documentation and the contract.

Is it possible to make changes to the draft contract at the stage of its conclusion in order to correct errors made during the formation of the auction documentation?

The customer is not entitled to make changes to the draft contract being concluded.

Otherwise, such actions of the customer will lead to a violation of part 1 of article 34, parts 2, 10 of article 70 of Law No. 44-FZ.

Officials of the customer may be brought to administrative responsibility on the basis of part 1 of article 7.32 of the Code of the Russian Federation on administrative offenses(decision of the FAS Russia dated January 22, 2015 in case No. K-K-40/15/14).

If the execution of the contract on the conditions specified in it is impossible, then the customer and the supplier have the right to terminate it immediately after the conclusion of the contract by agreement of the parties on the basis of Part 8 of Article 95 of Law No. 44-FZ.

Calculation of penalties for price changes

We signed a contract for the supply of fuel, and later the customer decided to increase the volume of delivery of goods. Accordingly, we have increased the price of the contract. But we delayed the delivery of the goods. How will the customer charge us a penalty: from the original contract price or from the changed one?

Situation: is the customer entitled to conclude an additional agreement to increase the price of the contract by 10 percent, if the contract was concluded as a result of the request for quotations

No, not right.

Firstly, the parties are not entitled to increase the price of the contract on the basis of subparagraph "b" of paragraph 1 of part 1 of Article 95 of Law No. 44-FZ without increasing the quantity of goods supplied, the volume of services provided (work performed).

Secondly, the possibility of changing the terms of the contract must be provided for in it and in the procurement documentation (with the exception of procurement from a single supplier) (clause 1, part 1, article 95 of Law No. 44-FZ). The procedure for determining a supplier (contractor, executor) by requesting quotations does not involve the formation of procurement documentation. Therefore, if the purchase was carried out by conducting a request for quotations, then the customer is not entitled to conclude an additional agreement to the contract that changes the quantity of goods supplied, the volume of services provided (work performed), as well as the price of the contract on the basis of subparagraph "b" of paragraph 1 of part 1 of Article 95 of Law No. 44-FZ.

This conclusion is confirmed by the position of the Ministry of Economic Development of Russia, set out in letters dated November 23, 2015 No. D28i-3411, dated October 2, 2015 No. OG-D28-12811.

Situation: Is it possible to increase the scope of work by 10 percent in relation to an already completed contract?

No you can not. Based on the meaning of subparagraph “b” of paragraph 1 of part 1 of Article 95 of Law No. 44-FZ, the parties can change the terms of the contract only in the course of its execution (for example, before signing the acceptance certificate for all work, the act on the fulfillment of obligations under the contract). That is, if the contract has already been executed, its terms cannot be changed.

Situation: the customer has signed a contract for the construction of a school. In the design documentation, he provided for the types of work on the fire protection of metal, but did not provide for these works in the contract (estimate). Can an additional agreement include these works in the contract with an increase in the cost of the contract up to 10 percent

No, this possibility is not provided for in Law No. 44-FZ. Based on the meaning of subparagraph “b” of paragraph 1 of part 1 of article 95 of Law No. 44-FZ, “new works” cannot be added to the contract, since only the amount of work that is already provided for in the contract can be increased by 10 percent. At the same time, the price increase is also carried out on the basis of the price of a unit of work established in the contract.

For “new works”, the customer needs to make a new purchase. For example, if its amount does not exceed 100,000 rubles, then from a single supplier (clause 4, part 1, article 93 of Law No. 44-FZ).

Situation: based on the results of an electronic auction, an institution to meet the needs of a constituent entity of the Russian Federation entered into a contract for the provision of security services for an office space. However, later unforeseen expenses arose for other required by the institution services resulting in funding gaps. Is it possible to reduce the price of the concluded contract?

Yes, you can. In this situation, the customer has several options for possible actions:

In these cases, the following conditions must be met:

Reduce the price of the contract without changing the scope of services (subparagraph “a”, paragraph 1, part 1, article 95 of Law No. 44-FZ).
Reduce the volume of services and the price of the contract by no more than 10 percent (subparagraph “b”, paragraph 1, part 1, article 95 of Law No. 44-FZ).
- the customer provided for the possibility to change the terms of the contract in the procurement documentation and the contract, and when purchasing from a single supplier (contractor, performer) - in the contract;
- the customer and the contractor had mutual consent to such a change.
Reduce the volume of the service and the price of the contract, taking advantage of the opportunity provided for contracts in 2016.

To reduce the price of the contract in this situation is possible only by agreement of the parties.

Situation: is it possible to amend the terms of the contract by agreement of the parties in the amount of no more than 10 percent in relation to reducing the price of a unit of spare parts

No, the parties do not have legal grounds to amend the terms of the contract in terms of reducing the unit price of spare parts.

It is possible to make changes to the terms of the contract during its execution in the amount of no more than 10 percent only when the customer and the contractor had mutual consent to such a change, and the customer provided for in the procurement documentation and contract, and when purchasing from a single supplier (contractor, Contractor) - in the contract the right to change its terms in relation to the quantity of goods, scope of work or service provided for by the contract, but not the number of spare parts.

Situation: is it possible to increase the volume of supplied products not for all positions, but only for some items

No you can not. The legislator unequivocally established the procedure for determining the price of a unit of additionally supplied goods, which does not provide for an increase in the quantity of goods for individual items in the case of the purchase of goods with different prices and different quantities according to the lists. You can increase the quantity of goods only with the targeted purchase of a specific product.

Otherwise, for example, the customer may buy an additionally supplied item from the list at a unit price ten times higher than the price at which the supplier originally supplied the required item under the contract.

3. The price of a contract concluded to meet federal needs for a period of at least three years equals or exceeds the price established by the Government of the Russian Federation, and due to circumstances beyond the control of the parties, execution of the contract is impossible without changing its terms. The price for this situation is:

How to work with contracts that are executed before they are concluded

Each customer faced a situation where the contract is executed before the conclusion. For example, it is impossible to accurately calculate how much electricity an enterprise will consume in a year, but for normal operation public utilities performer must provide continuously. When the delivery of the goods has taken place, the work has been completed, the service has been provided, but there is no signed contract yet - few people know how to work with such contracts without errors.

40 million rubles - for a contract that includes the performance of work on the conduct of clinical trials of medicinal products for medical use (clause 1 of Resolution No. 1186);
10 billion rubles - for other contracts concluded to meet federal needs (clause 1 of Decree No. 1186).

Changes are made to the contract based on the decision of the Government of the Russian Federation.

7. For the customer - a state-owned institution (not a budgetary one, but a state-owned one) as a recipient of budgetary funds, the previously adjusted limits of budgetary obligations were reduced (clause 6, article 161 of the Budget Code of the Russian Federation). In this case, the customer agrees with the supplier (contractor, performer) new terms of the contract, including the price and (or) terms of its execution and (or) the quantity of goods, scope of work or services.

If the supplier (contractor, performer) does not agree to change the term of the contract or reduce the price of the contract without reducing the number of goods, scope of work or services, then the customer agrees with him the terms of the contract in terms of reducing the number of goods, scope of work or services (clause 2 of Resolution No. 1090). Changes are made to the contract based on the decision of the Government of the Russian Federation.

4. The price of a contract concluded to meet the needs of a constituent entity of the Russian Federation for a period of at least three years equals or exceeds the amount of the price established by the Government of the Russian Federation, and due to circumstances beyond the control of the parties, execution of the contract is impossible without changing its terms. The price for this situation is 1 billion rubles. (Clause 1 of Decree No. 1186).

Changes are made to the contract based on the decision of the highest executive body of state power of the subject of the Russian Federation.

5. The price of a contract concluded to meet municipal needs for a period of at least one year equals or exceeds the price set by the Government of the Russian Federation, and the execution of the contract due to circumstances beyond the control of the parties without changing its terms is impossible. The price for this situation is 500 million rubles. (Clause 1 of Decree No. 1186).

Changes are made to the contract based on the decision of the local administration.

6. Regulated prices (tariffs) for goods, works, services have changed in accordance with Russian legislation.

On this basis, for example, the parties may change the price of the contract concluded on the basis of paragraphs 8, 22 of part 1 of Article 93 of Law No. 44-FZ.

The reduction in the quantity of goods, the volume of work or services with a decrease in the price of the contract is carried out in accordance with the methodology approved by the Decree of the Government of the Russian Federation of November 28, 2013 No. 1090.

The customer decides to change the contract due to the reduction of the limits of budgetary obligations based on:

proportionality of the change in the price of the contract and the quantity of goods, volume of work or service (part 3 of article 95 of Law No. 44-FZ);
the need to fulfill, as a matter of priority, the obligations arising from the contract, the subject of which is the supply of goods necessary for normal life support (including food, means for providing emergency, including ambulance specialized, medical care in an emergency or emergency form, medicines , fuel), and (or) for which the supplier (contractor, performer) fulfilled the obligations (part 4 of article 95 of Law No. 44-FZ).

8. The contract is concluded with a foreign organization for the treatment of a citizen of the Russian Federation outside its territory. The price of the contract can be changed if the list of services related to the treatment of a citizen of the Russian Federation is increased or decreased for medical reasons.

9. By agreement between the customer and the supplier (contractor, performer), goods are delivered, works are performed, services are provided, the quality, technical and functional characteristics (consumer properties) of which are improved compared to the quality and corresponding technical and functional characteristics specified in the contract.

If the sand grade is improved in its characteristics compared to the sand grade contained in the concluded contract, and the quality of work will not deteriorate when replacing the sand, then the replacement of the sand grade is possible in accordance with this basis.

The exception is goods originating from foreign countries, works, services, respectively performed, rendered foreign persons, in respect of which the Government of the Russian Federation or the Ministry of Economic Development of Russia has established restrictions (part 7 of article 95, part 6 of article 14 of Law No. 44-FZ). They establish cases in which the customer is not entitled to replace the goods or the country (countries) of origin of the goods. These restrictions are set out in the following rules:

clause 3(1) of Decree of the Government of the Russian Federation of February 5, 2015 No. 102 “On restrictions and conditions for the admission of certain types of medical devices originating from foreign countries for the purposes of procurement for state and municipal needs”;
clause 3 of Decree of the Government of the Russian Federation of November 30, 2015 No. 1289 “On restrictions and conditions for the admission of drugs originating from foreign countries included in the list of vital and essential drugs for the purposes of procurement for state and municipal needs”;
clause 13 of the order of the Ministry of Economic Development of Russia dated March 25, 2014 No. 155 "On the conditions for the admission of goods originating from foreign countries for the purpose of procurement of goods, works, services to meet state and municipal needs."

Changes made to the terms of the contract, the parties set out in an additional agreement. The customer places them in the register of contracts.

In 2016, the parties to the contract have the right, by agreement, to change the following conditions:

term of the contract;
contract price;
unit price of goods, works, services;
quantity of goods, volume of works, services.

For more details, see What features of the execution of contracts appeared in 2016.

Attention: non-compliance with the rules for changing the contract entails administrative responsibility.

If the parties have changed the terms of the contract, including increasing the price of goods, works, services, and at the same time the possibility of such a change is not provided for by Law No. 44-FZ, then a fine threatens:

officials and individual entrepreneurs - in the amount of 20,000 rubles;
legal entities - in the amount of 200,000 rubles.

Such liability is established in Part 4 of Article 7.32 of the Code of Administrative Offenses of the Russian Federation.

The amount of the fine will increase if the illegal change resulted in:

additional spending of funds from the relevant budgets budget system Russia or
a decrease in the quantity of supplied goods, the volume of work performed, services rendered to meet state and municipal needs.

In this case, the fine for an official, an individual entrepreneur and a legal entity will be double the amount:

additionally spent funds from the relevant budgets of the budget system of Russia or
prices of goods, works, services, the quantity, volume of which is reduced and which were the subject of the offense.

Such liability is established in Part 5 of Article 7.32 of the Code of Administrative Offenses of the Russian Federation.

Officials are understood as the heads of the customer and the supplier (contractor, performer), as well as individual entrepreneurs. Entrepreneurs are not mentioned in these compositions, but they are liable in the same amount as officials, since the Code of the Russian Federation on Administrative Offenses does not provide otherwise (Article 2.4 of the Code of Administrative Offenses of the Russian Federation).

Situation: is it possible to conclude an agreement on changing the contract number and the number of the protocol for consideration and evaluation of quotation bids

Yes, since the number of the contract and the number of the protocol for the consideration and evaluation of quotation bids are not essential terms of the contract. The customer has the right to change them. At the same time, it must be remembered that in this situation, he needs to make changes to the information about the contract in the register of contracts on the official website within three working days from the date of signing the additional agreement (part 3 of article 103 of Law No. 44-FZ).

Situation: is it allowed to change the amount of the advance payment during the execution of the contract

No, not allowed. This possibility is not provided for by either Article 34 or Article 95 of Law No. 44-FZ.

Situation: is it possible to extend the expiration date of the contract due to the fact that the goods are detained at customs

No you can not. Such a case is not provided for by Part 1 of Article 95 of Law No. 44-FZ. Therefore, if an additional agreement is concluded to the contract on changing its expiration date on this basis, there are risks that antimonopoly service will regard such a change as an offense under Article 7.32 of the RF Code of Administrative Offences.

The supplier should be aware that the customer may apply to him liability in the form of penalties (fines, penalties) for failure to comply or improper performance obligations that are provided for by the contract (part 6 of article 34 of Law No. 44-FZ).

Situation: can the customer make changes to the contract if during the execution of the contract it turned out that part of the work is not necessary

No, he can not. The possibility of changing the terms of the contract in this case is not provided for by Law No. 44-FZ.

The customer must terminate the contract by agreement of the parties (part 8 of article 95 of Law No. 44-FZ) in the amount of work performed. For the remaining cash make purchases in the manner prescribed by Law No. 44-FZ.

Situation: how can the customer reduce the quantity of the delivered goods, if during the execution of the contract 8 percent of such delivered goods were no longer necessary, but the customer did not provide for the possibility of changing the terms of the contract in the procurement documentation

If the customer did not provide for the possibility of changing the terms of the contract in the procurement documentation on the basis of subparagraph “b” of paragraph 1 of part 1 of Article 95 of Law No. 44-FZ, then it is impossible to amend the terms of the contract in terms of reducing the quantity of goods supplied.

In this regard, after the delivery and acceptance of the required quantity of the supplied goods, the customer and the supplier must consider terminating the contract by agreement of the parties in terms of the quantity of the supplied goods, which the customer no longer needs, as well as in terms of a commensurate reduction in the contract price based on the price of a unit of goods .

Situation: is it possible to make changes to the terms of the contract in terms of replacing the source of financing

No you can not. The funding source is one of mandatory conditions contract (clause 2, article 42 of Law No. 44-FZ). The possibility of changing it is not provided for by either Article 34 or Article 95 of Law No. 44-FZ.

Situation: can the customer establish in the contract a condition on its annual prolongation

No, he can not. The provisions of Law No. 44-FZ do not provide for the possibility of extending the fulfillment of obligations under the contract for the next year. The prolongation clause of the contract does not clearly define the date of termination of the legal relationship between the parties and increases the price of the contract to a value exceeding that allowed by Law No. 44-FZ, which violates the provisions of Law No. 44-FZ. A similar position is contained in the decision Arbitration Court Kurgan region dated July 22, 2015 in case No. А34-3527/2015.

In what cases it is impossible to change the concluded contract

You cannot change:

Subject of the contract (for example, a specific type of service and features of their performance under the contract paid provision services (Clause 1, Article 779 of the Civil Code of the Russian Federation).
Conditions specified in law or otherwise legal acts as essential or necessary for contracts of this type (paragraph 2, clause 1, article 432 of the Civil Code of the Russian Federation).
Conditions regarding which, at the request of one of the parties, an agreement must be reached (paragraph 2, clause 1, article 432 of the Civil Code of the Russian Federation). For example, if the customer specified in the contract banking support specific bank and parties will need to finance through a specific bank.
Supplier (contractor, performer). An exception is the case when the new supplier (contractor, performer) is the successor of the supplier (contractor, performer) under such a contract as a result of the reorganization of a legal entity in the form of transformation (clause 5 of article 58 of the Civil Code of the Russian Federation), merger (clause 1 of article 58 of the Civil Code RF) or accession (clause 2, article 58 of the Civil Code of the Russian Federation).

Situation: in what cases can the customer transfer rights and obligations under contracts to a new customer who is not the successor of the old enterprise

The transfer of rights and obligations under contracts can only be carried out if the new institution belongs to the category of customers in the understanding of Law No. 44-FZ.

Law No. 44-FZ does not directly establish cases when a change of the customer is possible, but allows such a possibility itself (part 6 of article 95 of Law No. 44-FZ, letter of the Ministry of Economic Development of Russia dated March 21, 2016 No. D28i-808).

The transfer of rights and obligations based on the meaning of part 6 of article 95 of Law No. 44-FZ can only be made to a new customer.

Situation: can the parties, having concluded an appropriate supplementary agreement, replace one supplier of last resort with another under a contract for the supply of electricity in connection with the loss by the original supplier of the status of a supplier of last resort on the basis of an order of the Ministry of Energy of Russia

Changing the supplier of last resort is not allowed. Law No. 44-FZ allows the replacement of a supplier only if it is replaced by a successor as a result of the reorganization of a legal entity in the form of transformation, merger or acquisition (part 5 of article 95 of Law No. 44-FZ).

In this case, the parties should draw up an additional agreement on termination of the contract by agreement of the parties (part 8 of article 95 of Law No. 44-FZ) due to the impossibility of its execution (article 416 of the Civil Code of the Russian Federation).

Situation: can the customer change the name of the contractor in the concluded contract if there are documents confirming the change in the name of the contractor

Yes maybe. The name of the contractor is not an essential condition of the contract (Clause 1, Article 432 of the Civil Code of the Russian Federation). The change of the contractor is not carried out, as it remains the same, but with a new name.

The same applies to changes in the name of a legal entity in connection with bringing it into line with the norms of Chapter 4. Civil Code Russian Federation (clause 7, article 3 of the Law of May 5, 2014 No. 99-FZ “On Amending Chapter 4 of Part One of the Civil Code of the Russian Federation and on Recognizing Certain Provisions of Legislative Acts of the Russian Federation as Invalid”). For example, if the open joint-stock company to a public joint stock company.

What should the customer do after making changes to the contract?

After the parties have entered into an additional agreement to the contract that changed its terms, the customer is obliged:

Send information about the changes made to the contract to the Treasury of Russia within three working days from the date of conclusion of such an agreement (part 3 of article 103 of Law No. 44-FZ). The procedure for sending such information is established in the following acts:
- rules for maintaining the register of contracts concluded by customers, approved by Decree of the Government of the Russian Federation of November 28, 2013 No. 1084;
- Order of the Ministry of Finance of Russia dated November 24, 2014 No. 136n "On the procedure for generating information, as well as the exchange of information and documents between the customer and the Federal Treasury in order to maintain a register of contracts concluded by customers."
Place information about the changes made to the contract in the unified information system (zakupki.gov.ru) within one business day from the date of conclusion of such an agreement. Information constituting a state secret, the customer should not post (part 26 of article 95 of Law No. 44-FZ).

In this case, the customer is not entitled to increase the volume of purchased utilities, as well as the price of the contract by more than 10%.

In the event that the customer needs an additional volume of services and such volume exceeds 10% of the contract price, then the customer should purchase the specified volume by concluding a new contract.

If the question is only on an increase in the contract price due to an increase in regulated legislative level prices (tariffs) for utilities, the customer and the contractor, regardless of whether such a condition is provided for by the contract, have the right to conclude an additional agreement to the contract to increase the price of the contract (without increasing the volume). The customer is not bound by the 10% limit.