Change of customer under Federal Law 44 is a tripartite agreement. Change of customer by additional agreement

Is it possible to make changes to a municipal contract concluded as a result of an electronic auction (Federal Law of April 5, 2013 N 44-FZ), if the auction documentation contains the possibility of changing the price in the amount of 10% of the contract price, and the contract contains only the following wording: “A change to the contract is possible in accordance with Federal Law dated 04/05/2013 N 44-FZ”?

The answer to the question about the legality of changing the terms of the contract under the circumstances set out in the question largely depends on the specific circumstances and, in the event of a dispute, can only be given by a court. We were unable to find any official explanations or law enforcement practices that would address a similar situation. In this regard, within the framework of this consultation, we can only present general considerations regarding the situation described in the question.
According to the Federal Law of 04/05/2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as Law N 44-FZ), changes in the essential terms of the contract during its execution are allowed by agreement of the parties in the cases listed in this part. Thus, in accordance with Law N 44-FZ, at the request of the customer, the quantity of goods, volume of work or services provided for in the contract may be increased or decreased by no more than 10%. 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 10% of the contract price. However, as directly follows from the provisions of Law N 44-FZ, such a change in the terms of the contract is permissible only 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) - contract.
According to Law No. 44-FZ, based on the results of an electronic auction, a contract is concluded on the terms specified in the notice of an electronic auction and documentation about such an auction, at the price offered by its winner. In other words, if the condition on the possibility of changing the contract in the manner prescribed by Law No. 44-FZ was provided for by the auction documentation, as required by the provisions of clause 9, part 1, art. 64 of this law, such a condition must be included in the text of the contract itself. Thus, literally from the above rules it follows that in order to change the terms of the contract specified in Law N 44-FZ, such a possibility must be provided for both by the procurement documentation and the contract itself (see resolution of the Autonomous District of the Ural District dated 02/07/2017 N 09-11735/16 in case No. A60-22107/2016).
In cases where the conditions for amending the contract contained in the procurement documentation do not correspond to similar conditions included in the draft contract, the antimonopoly authorities come to the conclusion that the conditions for amending the contract are inconsistent, misleading procurement participants (see, for example, the decision of the Federal Antimonopoly Service on Moscow dated 09/05/2016 N 2-57-9738/77-16, decision of the OFAS for the Yaroslavl region dated 30.11.2016 N 21837/05-02(361ZH-16), decision of the OFAS for Moscow dated 05/26/2016 N 2-57- 5176/77-16, decision of the OFAS for the Republic of Tatarstan dated 04/10/2014 N 69-kz/2014, decision of the OFAS for the Republic of Kalmykia dated 01/21/2016 N 08\10-05).
The provisions of No. 44-FZ do not directly stipulate that contract provisions on the possibility of changing its conditions must contain a reference to specific norms of Law No. 44-FZ. As law enforcement practice shows, regulatory authorities in a number of cases do not consider it a violation to include general references to Law No. 44-FZ in the text of a draft contract (see, for example, the decision of the Federal Antimonopoly Service for the Kostroma Region dated March 3, 2017 No. 12-10-12/2017, FAS decision dated October 5, 2015 N K-1265/15, decision of the Federal Antimonopoly Service for the Tambov Region dated July 20, 2015).
At the same time, as already noted, the possibility of changing the contract is made N 44-FZ dependent on additional circumstances, that is, due, in particular, to the presence of provisions in the contract allowing such changes. By themselves, the provisions of N 44-FZ do not provide for the possibility of changing the contract (without compliance with additional conditions). In this regard, it seems to us that the wording given in the question (“changes in the contract are possible in accordance with Law No. 44-FZ”) cannot be considered as a contract condition agreed upon by the parties on the possibility of changing its terms. At the same time, since in the above situation the possibility of changing the terms of the contract is provided for by the auction documentation, we cannot exclude that the conclusion by the parties of an additional agreement to change the terms of the contract in the event of a dispute will not be qualified as a violation.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Verkhova Nadezhda

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Alexandrov Alexey

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

Federal Law No. 44-FZ dated 04/05/2013 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as Law No. 44-FZ) allows for changes to the terms of the contract in the following cases:

- when concluding a contract- in accordance with Part 18 of Article 34 of Law No. 44-FZ, the customer, in agreement with the procurement participant with whom the contract is concluded in accordance with Law No. 44-FZ, has the right to increase the quantity of goods supplied by an amount not exceeding the difference between the contract price offered such participant, and the initial (maximum) contract price (lot price), if this right of the customer is provided for in the tender documentation, auction documentation. In this case, the price of a unit of goods should not exceed the price of a unit of goods, determined as the quotient of dividing the contract price specified in the application for participation in the competition or proposed by the auction participant with whom the contract is concluded by the quantity of goods indicated in the notice of the competition or auction;

- when executing a contract- in accordance with Part 1 of Article 95 of Law No. 44-FZ, changes in the essential terms of the contract are not allowed, except for their changes by agreement of the parties:

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 the event of a decrease in the quantity of supplied goods provided for in the contract should be determined as the quotient of dividing the original contract price by the quantity of such goods provided for in the contract.

Article 70 of Law No. 44-FZ establishes the procedure for concluding a contract based on the results of an electronic auction.

In accordance with Part 2 of Article 70 of Law No. 44-FZ, a draft contract is drawn up by including the contract price proposed by the participant in the electronic auction with whom the contract is concluded, information about the product (trademark and (or) specific indicators of the product) specified in the application for participation in the auction of its participant, in the draft contract attached to the auction documentation.

Based on the results of the electronic auction, the customer calculates the price per unit of goods (work, service), which is included in the draft contract sent to the winner of the electronic auction.

When the price proposed by a participant in an electronic auction is included in the draft contract, the price per unit of goods (work, service) must be reduced in proportion to the reduction coefficient based on the results of the electronic auction. The sum of prices per unit of goods (works, services) must correspond to the price offered by the winner of the electronic auction and specified in the protocol of the electronic auction.

In accordance with the provisions of Part 4 of Article 70 of Law No. 44-FZ, the auction winner is allowed to post a protocol of disagreements in the unified information system no later than thirteen days from the date of posting in the unified information system the protocol for summing up the results of the electronic auction. In this case, the winner of the auction with whom the contract is concluded indicates in the protocol of disagreements comments on the provisions of the draft contract that do not correspond to the notice of such an auction, the documentation about it and his application for participation in such an auction, indicating the relevant provisions of these documents.

Law No. 44-FZ does not provide for restrictions related to the number of placements of this protocol, taking into account the specified period.

Based on the results of the competition, the Ministry of Emergency Situations of Russia concluded a government contract and paid 1 million 300 thousand in advance. The deadline for completing the work by the Contractor was December 31, 2015. To date, the work has not been completed, the money has been sent to the budget, and no claim work has been carried out. The Ministry of Emergency Situations of Russia plans to change the customer through an additional agreement. Is it possible in such a situation to change the customer?

Answer

Oksana Balandina, chief editor of the State Order System

From July 1, 2018 to January 1, 2019, customers have a transition period - they are allowed to carry out both electronic and paper procedures. Starting from 2019, tenders, auctions, quotations and requests for proposals on paper will be prohibited, with eight exceptions.
Read what kind of purchases to carry out on the ETP, how to choose a site and obtain an electronic signature, what are the rules for concluding contracts during the transition period and after.

A change of customer is permissible only if the new party to the contract is the customer within the meaning of Law No. 44-FZ (Clause 5-7, Article 3, Part 6, Article 95 of Law No. 44-FZ).

In addition, the conclusion of an additional agreement on a change of customer is possible only if this contract is still valid.

By virtue of Part 6 of Art. 95 of Law No. 44-FZ, in the event of a change of customer, the rights and obligations of the customer provided for in the contract are transferred to the new customer.

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At the same time, according to clause 7 of Art. 3 of Law No. 44-FZ, the customer is a state or municipal customer, or in accordance with Part 1 of Art. 15 of Law No. 44-FZ budgetary institution carrying out procurement.

By virtue of clause 5 of Art. 3 of Law No. 44-FZ, a state customer is a state body, the State Atomic Energy Corporation Rosatom, the State Corporation for Space Activities Roscosmos, a management body of a state extra-budgetary fund or a state government agency, acting on behalf of the Russian Federation or a subject of the Russian Federation, authorized accept budget obligations in accordance with the budget legislation of the Russian Federation on behalf of the Russian Federation or a constituent entity of the Russian Federation and carry out procurement.

In accordance with paragraph 6 of Art. 3 of Law No. 44-FZ, a municipal customer is a municipal body or a municipal government agency acting on behalf of a municipal entity, authorized to accept budget obligations in accordance with the budget legislation of the Russian Federation on behalf of the municipal entity and carrying out procurement.

Thus, the powers of the new party under the contract can be transferred only if it is the customer within the meaning of Law No. 44-FZ.

In addition, according to Part 1 of Art. 2 of Law No. 44-FZ, the legislation of the Russian Federation on the contract system in the field of procurement of goods, works, services to meet state and municipal needs is based, inter alia, on the provisions of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

In accordance with paragraph 3 of Art. 425 of the Civil Code of the Russian Federation, the contract may provide that the expiration of the contract entails the termination of the obligations of the parties under the contract. An agreement that does not contain such a condition is recognized as valid until the moment specified in it when the parties fulfill the obligation.

Thus, if this contract provides that the end of its validity period entails the termination of the obligations of the parties, then this contract should be considered terminated (resolution of the Arbitration Court of the North-Western District of August 29, 2014 No. F07-6207/2014 in case No. A56-63494/2013 , resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 30, 2014 in case No. A29-4089/2013).

As indicated by the Supreme Arbitration Court of the Russian Federation in Determination No. VAS-2955/11 dated March 25, 2011 in case No. A27-22628/2009, an agreement that has ceased to be valid cannot be changed.

If there is no provision in the contract that upon termination of its validity period, the obligations of the parties also terminate (clause 3 of Article 425 of the Civil Code of the Russian Federation), such a contract is recognized as valid until the end of the fulfillment of the obligations by the parties specified in it, and the obligations of the parties provided for in this contract are saved.
Thus, in this case, this contract is recognized as valid, and the customer has the right to decide on changing the customer.

Attention: customer change is permitted without restrictions. The rights and obligations of the customer provided for in the contract are transferred to the new customer (Part 6, Article 95 of Law No. 44-FZ).

Situation: in what cases can a customer transfer rights and obligations under contracts to a new customer who is not a legal 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 within the meaning of Law No. 44-FZ.

Law No. 44-FZ does not directly establish cases when a change of customer is possible, but allows for such a possibility (Part 6, 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.

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Lawyers' answers (4)

received
fee 33%

Lawyer, Vologda

Chat
• 8.2 rating

Good afternoon, Marina.

Is it necessary to include a clause in the additional agreement about the transfer of rights and obligations to the new Customer?

If the customer changes, all rights and obligations specified in the contract are transferred to him. Therefore, from a legal point of view, this is not necessary.

Can the Contractor require the Customer to enter into an additional agreement to change the deadline for completing the work? Does it need to indicate why the period is being extended?

No, the contractor cannot demand the conclusion of an additional agreement if such a possibility is not specified in the text of the contract. But you can try to come to an agreement with the customer, explaining to him the reasons for concluding such an agreement.

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• received
  fee 33%

  Lawyer, Stavropol

  Chat
  • 8.8 rating
  • expert

  Hello, Marina!
  

  1. In connection with the reorganization of their department, the Customer sent for approval a tripartite additional agreement on changing the Customer (to the MKU “Capital Construction Department of the City Administration”). This additional agreement specifies only the points in which one name of the Customer is changed to another. Is it necessary to include a clause in the additional agreement about the transfer of rights and obligations to the new Customer?
  Marina

  You need to understand whether this is really a reorganization, or just a change in the name of the organization, or whether it’s just a change in the customer. Whether the new organization is the legal successor of the original customer.
  

  In general, if there was no reorganization (or it is not just a change of name), the new customer is not a legal successor, then changing the customer to another person is unacceptable.
  

  In this situation, you need to look at the agreement itself. If possible, can you attach it to the question?

  
  Marina
  

  Did the contractor inform the customer about this?

  In general, changes in the timing of work under 44-FZ are not provided. This actually means changing the essential terms of the contract, which is not allowed.

  If the customer makes demands for payment of a penalty, in this case you can refer to the fact that the delay in completing the work was not your fault.

  You cannot change the terms in the contract; Article 95 of 44-FZ does not provide for such grounds.

  Good luck!

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  Client clarification

  Hello Irina!

  The first question was clarified, they sent the full text of the additional agreement, it was drawn up in accordance with the resolution of the head of the city administration______, according to which the new customer is given the functions of a customer for a number of objects, including ours.

  on the 2nd question

  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:

  We are the only contractor, the contract stipulates

  19.1. This Contract may be amended and supplemented,

  which are formalized by additional agreements to this Contract.

  Do I understand correctly that it is possible to conclude an additional agreement to extend the deadlines or is this only possible in the cases provided for in clause 19.2 of the contract (its text is in the question itself)?

  received
  fee 33%

  Lawyer, Vologda

  Chat

  Good afternoon There is a good explanation for your question.
  

  MINISTRY OF ECONOMIC DEVELOPMENT OF THE RUSSIAN FEDERATION
  

  The Department for Development of the Contract System of the Ministry of Economic Development of the Russian Federation considered an appeal on the issue of clarification of the provisions 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 referred to as Law N 44 -FZ) and reports.
  In accordance with Part 6 of Article 95 of Law No. 44-FZ, in the event of a change of customer, the rights and obligations of the customer provided for in the contract are transferred to the new customer.
  Thus, in the case specified in the appeal, when the customer changes, his rights and obligations are transferred to the new customer in full. However, the consent of the contractor under such a government contract is not required.
  In accordance with Article 58 of the Civil Code of the Russian Federation, when a legal entity is merged with another legal entity, the rights and obligations of the merged legal entity are transferred to the latter.
  In connection with the reorganization in the form of affiliation, the newly created customer independently forms its own procurement schedule and enters into it the relevant information about upcoming purchases.
  It should also be noted that in accordance with paragraph 4 of part 1 of Article 93 of Law No. 44-FZ, purchase from a single supplier (contractor, performer) can be carried out by the customer in the event of a purchase of goods, work or services in an amount not exceeding one hundred thousand rubles. In this case, the annual volume of purchases that the customer has the right to carry out on the basis of this clause should not exceed two million rubles or should not exceed five percent of the total annual volume of purchases of the customer and should not amount to more than fifty million rubles. The specified restrictions on the annual volume of purchases that the customer has the right to make on the basis of this paragraph do not apply to purchases made by customers to meet the municipal needs of rural settlements.
  In this case, the calculation of the total annual volume of purchases will be made from the moment of reorganization, taking into account the volume of purchases of organizations affiliated to the customer.
  We also note that the schedule of the acquired institution is not subject to use by the customer in its procurement activities.
  According to Part 4 of Article 49 of Law No. 44-FZ, the customer has the right to decide to make changes to the notice of an open tender no later than five days before the deadline for filing applications for participation in an open tender. Changing the procurement object and increasing the amount of security for applications for participation in an open tender are not allowed. Within one day from the date of adoption of the specified decision, such changes are posted by the customer in the manner established for posting a notice of an open tender. In this case, the period for filing applications for participation in an open competition must be extended so that from the date of posting such changes to the expiration date of the period for filing applications for participation in an open competition, this period is at least ten working days or, if in the notice of an open competition competition, such changes are made in relation to a specific lot, the deadline for submitting applications for participation in an open competition in relation to a specific lot must be extended.
  It should be noted that according to paragraph 4 of Article 79 of the Budget Code of the Russian Federation, government bodies (state bodies), management bodies of state extra-budgetary funds, local government bodies that are state (municipal) customers are given the right to transfer, free of charge, on the basis of agreements, their powers of state (municipal) customer for the conclusion and execution on behalf of the relevant public legal entity of state (municipal) contracts on behalf of these bodies when making budgetary investments in objects of state (municipal) property (hereinafter referred to as the agreement on the transfer of powers) to budgetary and autonomous institutions, in relation to in which these bodies exercise the functions and powers of the founders, or state (municipal) unitary enterprises, in respect of which these bodies exercise the rights of the owner of the property of the corresponding public legal entity.
  The conditions for the transfer of powers and the procedure for concluding agreements on the transfer of powers in relation to state property of the Russian Federation, state property of the constituent entities of the Russian Federation, and municipal property are established accordingly by the Government of the Russian Federation, the highest executive bodies of state power of the constituent entities of the Russian Federation, and local administrations of municipalities.
  Agreements on the transfer of powers are the basis for the opening of personal accounts for the recipient of budget funds under the transferred powers for the bodies specified in paragraph one of this paragraph in the bodies of the Federal Treasury (financial bodies of the constituent entities of the Russian Federation and financial bodies of municipalities) to account for transactions involving budget investments in objects state (municipal) property.
  Taking into account the above, an agreement on the transfer of powers from one customer to another must contain conditions for the transfer of such powers in terms of the implementation of procurement procedures.
  At the same time, we inform you that clarifications of a government body have legal force if this body is endowed, in accordance with the legislation of the Russian Federation, with special competence to issue clarifications on the application of the provisions of regulatory legal acts. The Ministry of Economic Development of the Russian Federation is a federal executive body, under the current legislation of the Russian Federation, including the Regulations on the Ministry of Economic Development of the Russian Federation, approved by Decree of the Government of the Russian Federation of June 5, 2008 N 437, not vested with the competence to clarify the legislation of the Russian Federation.
  

  Director of the Department
  development of the contract system
  M.V.CHEMERISOV
  16.12.2016
  

  Thus, it is not even necessary to enter into any agreements. They notify you that there is a new customer, you will hand over the results of the work to them, and the payment will be from them. All obligations regarding the contract will be transferred to the “new customer”.
  

  2. The Customer did not timely provide the requested initial data for the design (technical specifications, which, according to the MK, are obtained jointly with the Customer). For this reason, there was a delay in the work schedule, of which the Contractor officially notified all interested parties by letter. There were no notifications to the Customer about the suspension of work (due to the lack of specifications). Can the Contractor require the Customer to enter into an additional agreement to change the deadline for completing the work? Does it need to indicate why the period is being extended?
  Marina

  As for this, you present all the demands and disagreements to the “new customer”. These are already the terms of the contract.