Changing the term of the contract under 44 Federal Laws. How to extend the validity period of a government contract

When concluding a state or municipal contract, our clients are often faced with the objective need to extend the terms of the contract. In the vast majority of cases, this situation arises during the execution of the contract.

The reasons for postponing deadlines can be different, sometimes these are the actions of the customer himself, there are also cases of providing low-quality project documentation. You can see what to do in such cases .

In this material, we will draw attention to the specific conditions for postponing deadlines for state and municipal contracts.

As a general rule (Article 95 Federal Law 44 Federal Law), changing the terms of a state or municipal contract is not allowed. However, there are exceptions to this rule (clause “b”, clause 1, part 1, article 95 of the Federal Law “On the contract system”). In terms of price, the contract can be changed by agreement of the parties in the following cases:

1) the price increases in proportion to the increase in the quantity of goods, volume of work (services);
2) the price increases by no more than 10%;

3) the possibility of changing the terms of the contract was provided for in the documentation on the electronic auction.

In what cases is it possible to change the terms of execution of a government contract?

Firstly, changes in the deadline for completing a government contract are possible with a decrease in the funds from the corresponding budget allocated to finance contract work, this is directly indicated by clause 1 of Art. 767 Civil Code of the Russian Federation. If you change (reduce) the financing of the contract, you can require the customer to postpone the deadline for its execution.

As mentioned above, changes in the price and terms of the contract are possible by agreement of the parties. However, such a change cannot be arbitrary. The procedure for concluding such an agreement is established by government decree No. 191 dated March 14, 2016 (the same The resolution was also in force in 2015).

An additional agreement can be concluded in the following cases:

Contract duration - over 6 months

Procurement is carried out by the federal government, Rosatom or the “most significant” government agencies, federal subject or municipality

The contract price is above 1 million rubles

For small businesses, the contract price should not exceed 5 million rubles

The subject of the contract is the construction, reconstruction, technical re-equipment of capital construction projects

The contract was concluded in Russian rubles

At the same time, compliance with these conditions when concluding an additional agreement is mandatory. For example, a court may refuse to approve a settlement agreement to change the term of a contract if the contract period is less than 6 months. (See, for example, the Determination of April 28, 2016 in case No. A45-748/2016)

To conclude an additional agreement, the Contractor must send a written request to the customer. At the same time, the appeal must justify the need to change the government contract; the reasons for the change must be significant and objective (independent of the will of the contractor). It is significant changes in circumstances that are considered by the courts as grounds for satisfying the customer’s request to postpone the execution date. Materiality will be the subject of proof in court (as, for example, the court indicated in its ruling dated December 23, 2015 in case No. A60-27041/2015).

In legal defense of a dispute over changing the term of a state (municipal contract), the contractor can be assisted by a new work schedule with appropriate justification for the new terms of the contract.

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The customer is obliged to carry out purchases in full accordance with the schedule posted in the Unified Information System, where deadlines are one of the most important indicators. The conclusion of an additional agreement to extend the term of the contract, as well as the inclusion of relevant conditions in the text of the contract when concluding it, is strictly prohibited and will be considered violations. Extension of the contract term from the point of view of Law No. 223-FZ Customers carrying out procurement activities under Law No. 223-FZ are in less strict conditions, since they independently determine the requirements and develop procurement regulations. Nothing prohibits them from providing for the possibility of including in the text of the contract a provision for its extension.

Understanding the validity period of a government contract

Under the Civil Code of the Russian Federation, if there is a significant increase in the cost of materials and equipment provided by the contractor, as well as services provided to him by third parties that could not have been provided for at the conclusion of the contract, the contractor has the right to demand an increase in the established price, and if the customer refuses to fulfill this requirement, termination of the contract in accordance with Art. 451 of the Civil Code of the Russian Federation. In this regard, it is necessary to take into account that, in accordance with Part 2 of Art. 34 Important of Law No. 44-FZ, as a general rule, the contract price is fixed and is determined for the entire period of execution of the contract. The parties have the right to change the contract price only on the grounds provided for in Art.
95 Law No. 44-FZ. Only one of these reasons is related to changes in prices for work. So, according to clause 5, part 1, art. Law No. 44-FZ), which obviously does not apply to the case under consideration; - in accordance with Part 1.1 of Art.

Maximum term for concluding a contract under Federal Law 44 in 2018

Previous legislation provided for several exceptions to this rule. After the introduction of the amendments, it became impossible to conclude an additional agreement to extend the delivery period and the validity of the contract. This is confirmed by letter of the Ministry of Finance No. 02-02-15/24252 dated April 22, 2016 and letter of the Ministry of Economy and Development No. OG-D28-4011 dated March 31, 2017.
In the previous edition of 44-FZ there was a reference to the fact that the parties can extend the terms of execution of the contract if they reach mutual agreement on this issue. However, at the beginning of 2017, a government resolution came into force that abolished this rule. From now on, the contract term cannot be changed.

For example, breaking the contract will entail the imposition of significant penalties. The contract will be renegotiated (terminated and concluded on new terms) if no significant financial losses are expected. For example, a government agency for accepting work decides to continue cooperation with the Customer (for example, communication services).

It is impossible to extend an existing contract; a new one must be concluded on the same terms. An example from legal practice: due to changes in budget funding for the construction of a highway, the Customer decided to change the payment terms (the contract specified payment stages tied to the stages of work) without shifting the terms of the work itself. The contractor requested a change in the work schedule in court, and the court granted his request.

How to change state deadlines?

Changing the terms of the state contract 44-FZ

of the Russian Federation on the contract system in the field of procurement and such a change led to additional expenditure of funds from the corresponding budgets of the budget system of the Russian Federation or a decrease in the number of supplied 44-FZ in 2018: review of changes in the regulatory regulation of the contract system that came into force after January 1, 2018 Appeared standard terms of contracts providing for the involvement of subcontractors, co-executors from among the SMP, SONO in the execution of contracts Anti-crisis measures in the field of state and municipal procurement are no longer applied It is prohibited to make purchases that are not included in the schedules Dear friends, we are waiting for your questions and comments! You ask - we answer! Invalidity of a family law contract and limitation period The article analyzes the limits of application of limitation period in family relations.

44-FZ: change of contract term

In the judicial practice of the Russian Federation, the following circumstances are considered objective:

• A decrease in funding for work due to a reduction in funds allocated from the budget, and accordingly, a change in deadlines is associated with this;
• Increase in supply volumes under government contracts (but not more than 10%).

This, in addition to Federal Law 44, is indicated by clause 1 of Art. 767 of the Civil Code of the Russian Federation. Termination or extension of the term of a municipal contract under 44 Federal Laws? In some cases, the court will insist on terminating the contract and paying a fine even if the parties mutually agree to extend it. Changing the term, as mentioned above, refers to the essential terms of the concluded contract, and good reasons are needed to change them. The contract may be extended if its termination leads to significant financial losses for the Customer, the Contractor, or harms the interests of the state.

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As an example of practice, you can also familiarize yourself with the Resolution of the Federal Antimonopoly Service of the Ural District dated 07.11.2013 N F09-10788/13, 2 AAS dated 17.02.2010 N 02AP-352/2010 and Resolution 2 AAS dated 30.04.2014 N 02AP- 3030/14. 2. If the contract period according to the Federal Law of 04/05/2013

Attention

N 44-FZ has expired, but there is no deadline for fulfilling obligations, that is, by the time the contract expires, the obligations have not been fulfilled, is it possible to change the terms of the contract regarding the term? No you can not. The grounds for changing the contract are specified in Art. 95 of Federal Law N 44-FZ. There is no such basis as indicated in the question, which means it is impossible to change the contract in this case. However, we must remember that if the obligations are not fulfilled, the contract continues to be in force until the obligations under the contract are fulfilled.

This is stated in Part 3 of Art. 425 of the Civil Code of the Russian Federation.
Changing deadlines subject to force majeure According to Article 401 of the Civil Code of Russia, if a party proves that fulfillment of obligations is impossible due to force majeure circumstances, then it is released from liability. The concept of force majeure or force majeure includes national emergencies, natural disasters, man-made disasters, military conflicts, and so on. If the counterparty demands a change in the terms of the contract, citing the occurrence of force majeure, then he will have to prove this.
Confirmation may be a document received from government agencies, for example, the Ministry of Emergency Situations, the Chamber of Commerce and Industry, and so on. In this case, the contract term will actually remain the same, but the supplier will not pay fines and penalties payable for late delivery.

Is it possible to change the duration of the contract by 44 ap 2018

The parties entered into an additional agreement to change the contract price and payment terms. At the same time, the customer refused to enter data on adjusting the deadlines for completing the work. In court, the customer’s actions were declared unlawful.

The court ordered to adjust the deadlines for completing the work and make appropriate amendments to the contract. Based on court decisions in cases F09-6545/15, F07-4109/15, A58-619/2016 and many others, one can clearly conclude that the conclusion of an additional agreement to change the terms is considered illegal. Responsibility of the customer If violations are detected in changing the essential terms of the contract, which includes the deadline for completion of the work or delivery of goods, a fine is imposed on the customer.

Its amount for a legal entity is set at 200 thousand rubles, and for an official - 20 thousand rubles.
Extension of the validity of contracts concluded under the legislation on the contract system is one of the most popular topics for discussion and discussion. Indeed, in the process of implementing their procurement activities, customers sometimes need to extend the concluded contract. The reason for this need may arise for a variety of reasons.

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However, contract legislation has strict provisions regarding penalties for untimely fulfillment of contract terms. And from this point of view, the extension can be regarded as a deliberate attempt by an unscrupulous supplier to avoid this responsibility. We will try to understand this issue and give a specific answer to the question of whether it is possible to extend the validity period of an agreement concluded within the framework of the contract system.

A state contract under Federal Law 44 is an agreement (civil legal act) that is aimed at providing services or goods to government agencies and municipal enterprises. In addition to the general provisions of the Civil Code of the Russian Federation, the content of the contract is regulated by Federal Law No. 44, which specifies fairly stringent requirements for the conditions for the execution of work. In particular, in Art. 95 of the law spells out a number of provisions, changes to which are unacceptable.

These include essential provisions of the contract, such as the contract price, list of works, delivery dates, etc. According to Art. 95 of the Law, changing the deadlines for the execution of a contract can be classified as essential provisions and cannot be changed. However, in paragraphs. “b” clause 1 part 1 art. 95 of the Federal Law talks about exceptions that allow the Customer and the Contractor to shift the deadline for completing the contract.

• Schedule for 44-FZ: formation, approval, amendment
• Purchasing information
• Information on purchases of PJSC NK Rosneft and subsidiaries of PJSC NK Rosneft
• Change of contract execution period for 44 ap in 2018
• Change of contract execution period under Federal Law 44 in 2018

Schedule under 44-FZ: formation, approval, amendment It is possible to conclude a contract with a person who is not the winner of the auction only if the winner of the electronic auction is recognized as having evaded concluding a contract (Part 14, Article 70 of Law No. 44-FZ ) or to the customer in accordance with Part 9 of Art. 37 of Law No. 44-FZ, in this case, no justification for the proposed contract price was provided (Part 10 of the same article).

Extending the execution period of a government contract is a change in its essential conditions. The procedure for changing the essential terms of a government contract is established by Art. 95 44-FZ.

1. Changing the essential terms of the contract during its execution is not allowed, with the exception of their change 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 a purchase from a single supplier (contractor, performer) by the contract:

a) when the contract price is reduced without changing the quantity of goods, volume of work or service provided for in the contract, the quality of the goods supplied, the work performed, the service provided and other terms of the contract;

b) if, at the customer’s proposal, the quantity of goods, the volume of work or services provided for in the contract is increased by no more than ten percent or the quantity of goods supplied, the volume of work performed or services provided under the contract is reduced by no more than ten percent. In this case, by agreement of the parties, it is allowed to change, taking into account the provisions of the budgetary legislation of the Russian Federation, the contract price 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 in the contract, the parties to the contract are obliged to reduce the contract price based on the unit price of the goods, work or service. The price of a unit of additionally supplied goods or the price of a unit of goods in case of a decrease in the quantity of the supplied goods stipulated by the contract must be determined as the quotient of dividing the original contract price by the quantity of such goods stipulated in the contract;

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 specified contract due to circumstances beyond the control of the parties to the contract is impossible without changing its terms, these conditions 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 specified contract due to circumstances beyond the control of the parties to the contract is impossible 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 specified contract due to circumstances beyond the control of the parties to the contract is impossible without changing its terms, these conditions can be changed on the basis decisions of local administration;5

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

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

7) in the case of concluding a contract with a foreign organization for the treatment of a citizen of the Russian Federation outside the territory of the Russian Federation, the contract price 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 possibility was provided for in the contract with a foreign organization .

1.1 In 2015, it is allowed to change, by agreement of the parties, the contract execution period, and (or) the contract price, and (or) the unit price of goods, work, services, and (or) the quantity of goods, volume of work, services provided for in contracts (including government contracts , municipal contracts, civil law agreements of budgetary institutions for the supply of goods, performance of work, provision of services for the needs of customers, concluded before the date of entry into force of this Federal Law), the execution period of which ends in 2015, in the manner established by the Government of the Russian Federation. In this case, during the execution of the contract, the customer ensures that new terms and conditions of the contract are agreed upon with the supplier (contractor, performer).

Thus, changing the contract execution period is provided for in clause 1.1 of Art. 95 from which we see that it is allowed, by agreement of the parties, to change the deadline for the execution of the contract, the execution period of which ends in 2015.

Your contract is not covered by this article.

Can you clarify for what purpose you want to extend the contract?

The rules of civil law provide that the validity of an agreement between the parties can be extended beyond the period for which it was concluded. In this case, they talk about prolongation of the contract. Are these rules applicable to contracts under 44-FZ and under what conditions?

The essence of prolongation

Extension, including automatic extension, is often provided for in agreements for the supply of goods and services that are constantly needed by the consumer. For example, this is an agreement for the provision of Internet access, telephone communications, electricity supply, and water supply. This opportunity is very convenient, because after the end of the period for which the contract was concluded, as a rule, the consumer continues to need to receive the mentioned goods or services further. Therefore, there is no point in re-entering such an agreement every year.

To do this, the contract includes a condition that it is considered extended for the next year in the absence of an application for its termination from one of the parties. Thus, if the buyer or supplier wants to withdraw from the contract, he must send the mentioned statement to the other party.

Registration in ERUZ EIS

From January 1, 2019 to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru.

We provide a service for registration in the ERUZ in the EIS:

Extension and 44-FZ

As you know, government contracts are concluded based on allocated budget limits. And if such limits are approved for 3 years, then the customer can enter into a contract immediately for this period (letter of the Ministry of Economic Development dated July 29, 2015 No. D28i-2141). In this case, can he extend the contract concluded for one year? No, the Ministry of Economic Development believes and explains its position in letter No. D28i-1818 dated July 14, 2016.

The term of the government contract is an essential condition of the contract

In accordance with Part 1 of Article 95 of Law 44-FZ, the parties cannot change the essential terms of the agreement. The exception is some cases, which, however, are strictly regulated.

What conditions regarding deadlines are essential in a government contract? Based on paragraph 1 of Article 432 of the Civil Code, the essential conditions include the subject of the agreement, as well as other conditions that are recognized as essential by the parties to the agreement or by law and other legal acts.

The Civil Code contains several articles that include the following as essential conditions:

• Article 457 - delivery time of goods;
• Article 708 - start and end dates for work;
• Article 783 - term for provision of services.

It turns out that these conditions, in accordance with civil law, are recognized as essential terms of the contract. Therefore, according to Article 95 of Law 44-FZ, the parties cannot change them.

This conclusion is confirmed by the explanations of the Ministry of Finance given in letter dated April 22, 2016 No. 02-02-15/24252. Let us note that the parties also do not have the right to conclude a separate agreement in order to extend the term of the government contract - the Ministry of Economic Development warns about this in its letter No. OG-D28-4011 dated March 31, 2017.

As it was before

Over the previous two years, in accordance with Part 1.1 of Article 95 of Law 44-FZ, the parties to the government contract had the opportunity, by mutual agreement, to change its terms and price. The fact is that, according to the previously existing rules, this possibility was determined by government decree, and the permit was established for each year. However, since the beginning of 2017, this rule has been canceled.

When can you change the term of a government contract?

Today there is only one case when the term of a government contract can be changed. It is described in paragraph 6 of part 1 of article 95 of law 44-FZ. If the customer’s budget funding has been reduced, then he is obliged to agree with the contractor on the government contract on new conditions, which, among other things, include deadlines. But we are talking about a reduction in funding, so if the deadlines are revised, then to a lesser extent. So in this case, talking about prolongation of the government contract is irrelevant.

How to extend a government contract

Let’s say the customer is completely satisfied with the current supplier and the terms of the contract with him. Despite the fact that his desire to save time and money on the procurement procedure is quite understandable, he will not be able to do this. Because the only option to conclude a contract for next year is the usual procedure for a new procurement. It must be carried out in accordance with all the rules of 44-FZ. That is, the customer should include it in the schedule and procurement plan, justify the contract price, describe the subject of purchase, carry out a competitive procedure, or, if conditions allow, purchase from a single supplier.

What happens if the government contract is extended?

So, without a procurement, it is impossible to extend the government contract. If this requirement is violated, administrative punishment will follow as provided for in paragraphs 4 and 5 of Article 7.32 of the Code of Administrative Offenses of the Russian Federation. In this case, the contract manager or contract service specialist will be fined 20 thousand rubles, and the customer himself faces a fine of 200 thousand rubles. If the illegal extension resulted in costs, the fine will be equal to double the amount of overspent budget funds.

The term “prolongation” is not included in the Civil Code, but it is often used. It means the extension of the contract for a certain or indefinite period by agreement of the parties. This can be done by concluding an additional agreement. However, if the parties want to initially determine the relationship for the future, a prolongation clause can be included in the text of the contract. It is important to understand that it is necessary to indicate the period for which the contract will be automatically extended and the number of times for which extension is possible.

Is it possible to extend the supply contract under 44 Federal Laws?

According to Article 95 of the Contract System Law, the essential terms of the contract cannot be changed. But there are exceptions. Thus, it is allowed to reduce the contract price without changing the volume of goods or work and other conditions.
Also, at the initiative of the customer, it is possible to change the volume of supplies within 10% towards a decrease or increase. In addition, amendments are allowed when the contract price is equal to or exceeds the figure established by the Government, and it is impossible to execute the contract without changing the conditions, when regulated prices have changed, or the customer’s budget funding has decreased.

Please note that this article does not say anything about deadlines, so they cannot be changed under any circumstances. That is, the possibility of prolonging 44 Federal Laws does not provide. All purchases are carried out according to the schedule, and the duration of the contract in it is one of the main indicators; there can be no variability here.

It would also be a violation to include a clause in the contract regarding the possibility of extension. The legally correct way out of the situation would be to conclude a new contract within the framework of a different procurement.

How to arrange a contract extension under Federal Law 223 223 Federal Law does not install a strict ban on changing the terms of the contract. However, there are some nuances here. As you know, the customer creates the procurement regulations himself; accordingly, he can include a condition for extending the contract there. However, it is advisable not to do this if a competitive procedure was carried out and the contract was concluded with its winner. After all, prolongation

in this case, it may lead to a restriction of competition, and the customer will fall under the supervision of control authorities. In essence, prolongation is the agreement of new conditions. It turns out that instead of carrying out the next purchase and providing participants with equal opportunities, the customer negotiates new conditions with only one supplier. This may raise questions among inspectors.

Therefore, it is worthwhile to include a condition for extending the contract in the provision for procurement, which is carried out from a single supplier.
At the same time, based on practice, an agreement between the parties, defined as a contract extension, can be regarded in accordance with the Civil Code as the conclusion of a new contract. This follows from the letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59. It states that the agreement on a new term implies the emergence of a new obligation. After all, as a rule, the volume of delivery also changes, and, possibly, the name of the subject of the contract.
Summarizing all of the above, it can be noted that extension within the framework of Federal Law 223 is possible if:
It is advisable that the purchase is made from a single supplier, otherwise you may be suspected of limiting competition.

A party can propose to increase the contract term by writing a letter on contract extension. The nature of this document and communication channels can also be provided for in the procurement regulations.