Assistance from a lawyer in disputes regarding the accrual of penalties to a contractor under a government contract. Penalty: components of the concept and calculation procedure in various cases of violation of obligations by the parties to contracts Analysis of a practical situation

Let's figure out in what cases a fine is collected, and when a penalty is charged, and how the penalty under a contract under 44-FZ is calculated in accordance with the new rules in force from 09.09.2017.

Concept and legal regulation

The concept of a penalty according to Article 34 of the 44-FZ is defined as the amount of money paid by the party to the contract that has violated its obligations. There are two types of penalties: fine and penalty.

In accordance with the provisions of Article 34 of Law 44-FZ, the contract must include rules governing the withholding of penalties from the amount of the contract 44-FZ. A fine is a fixed sum of money, determined by agreement, and collected in case of non-fulfillment (improper fulfillment) of obligations, except for delay. A penalty is charged in case of delay and represents a certain percentage of the value of unfulfilled obligations, multiplied by the number of days of delay.

The penalty under government contract 44-FZ is determined in the manner established by Government Decree No. 1042 dated August 30, 2017.

Application practice

Let's look at some situations using specific examples.

Example 1. The goods were delivered (service provided) in violation of the deadline and of inadequate quality (for example, defective). The customer collects penalties and fines.

Example 2. The goods were not delivered on time, and the customer terminated the contract unilaterally. The customer has the right to collect penalties for each day of delay calculated before the date of termination of the contract, and a fine for failure to fulfill obligations (clause 36 of the Review of judicial practice of applying the legislation of the Russian Federation on the contract system, approved by the President of the Supreme Court of the Russian Federation on June 28, 2017).

Example 3. The customer has established the fact of several independent violations of the contract that are not related to the deadline. It is possible to collect several fines (clause 37, ibid.)

Example 4. Collection of penalties under a bank guarantee 44-FZ. The position of the courts and regulatory authorities is contradictory (Resolution of the Arbitration Court of the Vologo-Vyatka District dated March 28, 2016 in case No. A38-4251/2015, Letter of the Ministry of Economic Development of Russia dated February 15, 2016 No. D28i-416). It seems that if the bank guarantee specifies security for the obligation to pay the penalty, and the contractor refuses to fulfill it, the customer has the right to present such a requirement to the guarantor bank.

How is the penalty calculated for the customer?

The Decree on fines and penalties under 44-FZ dated August 30, 2017 regulates the procedure for determining sanctions against both the customer and the contractor.

The amount of penalties for the customer is calculated in accordance with Part 5 of Art. 34 according to the formula:

Amount of penalties = 1/300 × Amount of refinancing rate on the date of accrual of penalties × Amount of unpaid amount × Number of days of delay.

The amount of fines is determined as a fixed amount and depends on the contract price:

How is a penalty calculated for a supplier?

Penalties are calculated using the formula:

Amount of penalties = 1/300 × Refinancing rate on the date of accrual of penalties × Contract price, reduced in proportion to the volume completed × Number of days of delay.

The counting of days of delay begins from the day following the day of expiration of the obligation.

The fine is calculated as a percentage of the contract price:

For SMP and SONO (purchase in accordance with clause 1, part 1, article 30 of law 44-FZ):

For failure to fulfill an obligation, the value of which cannot be determined:

In case of non-involvement of the subcontractor SMP or SONO under Part 6 of Art. 30 a fine of 5% of the volume of attraction under the contract is collected.

The total amount of penalties must not exceed the contract price.

Transfer of penalties to the budget under 44-FZ

Conducting claims work is not the right, but the responsibility of the customer. In each case, the institution is obliged to record the violation and send a complaint to the executor. Failure to hold the contractor accountable may be classified by regulatory authorities as ineffective spending of budget funds. The penalty collected by the customer is non-tax budget income and is subject to credit to the appropriate budget, KBK “Other receipts from monetary penalties and other amounts for damages” (Letter of the Ministry of Finance dated September 17, 2015 No. 02-08-07/53443).

One of the mandatory conditions contained in state (municipal) contracts is the condition on the responsibility of the supplier (executor, contractor) for non-fulfillment or improper fulfillment of obligations and on the payment of a penalty in favor of the customer. However, in some cases, calculating the penalty may cause certain difficulties. This article will attempt to consider the issue related to the calculation of penalties for the execution of a contract with different periods of delay.

Regulatory rationale

According to Part 4 of Art. 34 of Federal Law N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" the contract must include a condition on the responsibility of the customer and the supplier (executor, contractor) for non-fulfillment or improper fulfillment of obligations stipulated by the contract .
According to the general provisions of Ch. 23 of the Civil Code of the Russian Federation, a penalty is one of the methods provided for by law to ensure the fulfillment of obligations.
According to paragraph 1 of Art. 330 of the Civil Code of the Russian Federation, a penalty (fine, penalty) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in the case of delay in fulfillment. And according to Art. 331 of the Civil Code of the Russian Federation, an agreement on a penalty must be made in writing, regardless of the form of the main obligation.
According to Part 7 of Art. 34 of Law N 44-FZ, penalties are accrued for each day of delay in the fulfillment by the supplier (contractor, performer) of the obligation stipulated by the contract, starting from the day following the day of expiration of the deadline for fulfilling the obligation established by the contract, and are established by the contract in the amount determined in the manner established by the Government RF, but not less than 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force on the date of payment of penalties from the contract price, reduced by an amount proportional to the volume of obligations stipulated by the contract and actually fulfilled by the supplier (contractor, performer).
Clause 6 of the Rules for determining the amount of a fine, approved by Decree of the Government of the Russian Federation of November 25, 2013 N 1063 (hereinafter referred to as the Rules), provides for a norm similar to the above clause 7 of Art. 34 of Law N 44-FZ, while it is stated that the amount of penalties is determined by the formula: P = (C - V) x C, where C is the contract price; B - the cost of the contractual obligation actually fulfilled on time by the supplier (contractor, performer), determined on the basis of the document on acceptance of goods, results of work, provision of services, including individual stages of contract execution; C - bet size.
In practice, situations quite often arise in which the fulfillment of an obligation occurs in stages (both within the contract period and beyond). In this regard, the calculation of penalties may raise certain questions: on the one hand, there is judicial practice that has developed as a result of the application of the norms of the Civil Code of the Russian Federation, and on the other hand, there are the provisions of Law No. 44-FZ and the Rules operating on the provisions of this Law.

Calculation according to the Civil Code of the Russian Federation

A penalty is one of the measures of civil liability and, as a general rule, has a compensatory nature. The peculiarity of civil liability measures is that they must correspond to the incurred consequences of violation of the obligation, and their application should not lead to unjust enrichment of the victim. In this regard, the amount of the penalty established in accordance with the Rules must be correlated with the obligation, non-fulfillment (improper performance) of which by the debtor entails the collection of a penalty. This position is set out in letters of the Ministry of Finance of Russia dated December 24, 2014 N 02-02-07/66867 and dated November 27, 2014 N 02-02-04/60726.
This point of view is confirmed by judicial practice. Consider the following solution<1>.
———————————
<1>Resolution of the Nineteenth AAS dated 06/05/2015 in case No. A36-4926/2014.

From the case materials, it appears that between IDGC of Center, JSC, represented by the branch of IDGC of Center, Lipetskenergo, and Trading House Khorda LLC, a supply agreement dated March 14, 2014 N 4648006974 was concluded, according to which the defendant assumed obligations deliver to the buyer, and the buyer accepts and pays under the terms of the contracts for the goods specified in the specification, which is an integral part of the contracts.
In accordance with the delivery schedule under the contract dated March 14, 2014, the defendant had to deliver the goods within 45 calendar days from the date of conclusion of the contract, that is, the goods had to be delivered by April 27, 2014.
In fact, the delivery of goods was made by the defendant within the following terms: on March 14, 2014, goods were delivered in the amount of 119,770 rubles. 00 kopecks, 06/06/2014 - in the amount of 101,523 rubles. 41 kopecks, 07/21/2014 - in the amount of 283,996 rubles. 50 kopecks, 10/13/2014 - in the amount of 2360 rubles. 00 kop.
Due to the delay in delivery of goods under the contract for the period from 04/28/2014 to 09/10/2014, the plaintiff accrued penalties in the amount of 103,437 rubles. 73 kopecks at the rate of 0.15% for each day of delay of the contract price.
As follows from the legal position reflected in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 15, 2014 N 5467/14 in case N A53-10062/2013, a penalty as a way of securing an obligation should compensate the creditor for expenses or reduce the adverse consequences arising from improper performance by the debtor of his obligation before the creditor.
The accrual of a penalty on the total amount of the contract without taking into account the proper execution of part of the work contradicts the principle of legal equality provided for in paragraph 1 of Art. 1 of the Civil Code of the Russian Federation, since it creates preferential conditions for the creditor, who, therefore, is due compensation not only for an obligation not fulfilled on time, but also for those works that were performed properly. Meanwhile, turning the institution of a penalty into a way to enrich the creditor is unacceptable and contradicts its compensatory function.
An analysis of the above legal position allows us to conclude that the accrual of a penalty for the amount of properly fulfilled obligations leads to unjust enrichment.
Since the current civil legislation provides for the possibility of fulfilling an obligation in parts (Article 311 of the Civil Code of the Russian Federation), the accrual of a penalty on the total amount of the contract without taking into account the fulfillment of part of the obligation contradicts the principle of legal equality, since it creates preferential conditions for the creditor, who is due compensation not only for what was not fulfilled on time obligation, but also for the goods that were delivered ahead of schedule.
Taking into account the above, the judicial panel of the court of appeal comes to the conclusion that the methodology for calculating the penalty given by the plaintiff contradicts the norms of the current legislation (Article 330 of the Civil Code of the Russian Federation) and the terms of the contracts.

Calculation according to Law No. 44-FZ

Along with this position, another one is beginning to take shape in judicial practice, based on the norms of Law No. 44-FZ. Consider the following case<2>.
———————————
<2>Resolution of the Fourth AAS dated 02.02.2016 N 04AP-4687/2015 in case N A78-185/2015.

Based on the results of an open auction in electronic form, the defendant was declared the winner, with whom on May 12, 2014 the institution (customer) entered into a state contract for the supply of technical means of rehabilitation.
According to clause 5.1.2 of the contract, within 7 days from the date of conclusion of the state contract (that is, until May 19, 2014), the supplier is obliged to make a preliminary delivery of the entire consignment of goods in the city of Chita and organize preliminary acceptance of the entire consignment of goods in the city of Chita.
By the certificate of preliminary delivery of goods dated May 19, 2014, goods were delivered in the amount of 21,475 pieces. in the amount of 1,758,475 rubles. 76 kop.
Acts of preliminary delivery of goods, signed by the parties without comments: dated 05/28/2014, goods were delivered in the amount of 27,629 pcs. in the amount of 2,403,109 rubles. 05 kopecks, dated 06/06/2014, the goods were delivered in the amount of 16853 pcs. in the amount of 1197813 rubles. 05 kopecks, dated June 16, 2014, the goods were delivered in the amount of 77 pcs.

How to calculate penalties for 44 fz

for the amount of 3082 rubles. 13 kopecks
The supplier's obligations assumed under clause 5.1.2 of the contract were not fulfilled on time.
The plaintiff accrued a penalty taking into account acts of preliminary acceptance of goods for the period from 05/20/2014 to 06/15/2014 for a total amount of 240,837 rubles. 58 kopecks The claim sent to the defendant was left unsatisfied.
With a literal interpretation of clause 6 of the Rules, the conclusion follows that the basis for calculating penalties is the contract price, reduced only by the value of the obligation fulfilled by the supplier (performer, contractor) within the period established by the contract, since this is how the value of indicator B is defined in this clause. At the same time, as stated above, the Rules also provide for an increase in the K coefficient necessary to determine the size of the penalty rate, in proportion to the increase in the period of delay in comparison with the period for fulfilling the obligation under the contract (increase from 0.01 to 0.03, that is, from 1/100 up to 3/100 of the refinancing rate for each day of delay, which accordingly increases the amount of penalties up to three times per each day of delay).
The possibility, when calculating penalties, of reducing the contract price by the cost of the obligation fulfilled by the supplier (performer, contractor) upon expiration of the period established by the contract, as well as the possibility of determining the indicator of days of delay not as the total number of days of delay, but as the number of days between the dates of provision of successive parts of the obligation fulfillment expiration of the established period is not provided for by the Rules and does not follow from their meaning and content.
In this case, since when concluding a state or municipal contract the parties stipulate the deadline for fulfilling the obligation stipulated by it, the reasonable expectation of the creditor (customer) is reduced to receiving full performance within the period agreed by the parties. In this regard, if the deadline for fulfilling an obligation is violated, the debtor has the right to claim a reduction in the contract price for the purpose of calculating penalties only by the cost of that part of the performance that was completed within the established period, since only this part of the performance can be recognized as proper.

Conclusion

As we have already found out, the calculation of penalties with different periods of delay within the framework of Law N 44-FZ differs from the procedure for calculating penalties based on the provisions of the Civil Code of the Russian Federation. At the same time, we consider it necessary to note the following.
Law No. 44-FZ and the Rules do not contain such a definition as “stage of contract execution”. The Civil Code of the Russian Federation also does not use this term, revealing to us only the concept of “the period of delivery of goods” (Article 508 of the Civil Code of the Russian Federation), which means the supply of goods during the validity period of the supply contract in separate batches. Such a delivery procedure must be provided for by the parties.
At the same time, in accordance with clause 5 of Order of the Ministry of Economic Development of Russia N 182, Treasury of Russia N 7n dated March 31, 2015, if the contract provides for stage-by-stage execution of the contract and its payment, the deadlines for the execution of individual stages are indicated, if the periodic supply of goods, performance of work, provision of services — frequency of delivery of goods, performance of work, provision of services (daily, weekly, twice a month, monthly, quarterly, once every six months), the schedule must indicate the duration of the contract. It is important to understand that these provisions govern those contracts that provide for the gradual fulfillment of obligations. If the contract does not provide for its stage-by-stage execution, then the qualification of the provisions of the contract as implying such execution will be incorrect and run counter to the provisions of Law No. 44-FZ. Thus, the fulfillment of obligations under the contract in parts, both within the period provided for the fulfillment of obligations and beyond, cannot serve as a basis for recognizing the fulfillment of the contract in stages. In this regard, the accrual of penalties should occur from the day following the expiration of the deadline for fulfilling obligations.
It should be taken into account that the accrual of penalties should occur from the moment of delay in obligations and be calculated from the cost of unfulfilled obligations. Fulfillment of obligations during the period of delay should not be taken into account in the calculation. If the fulfillment of part of the obligations was carried out within the period established by the contract, then, according to clause 6 of the Rules, the calculation of penalties should be based on the contract price reduced by an amount proportional to the volume of obligations actually fulfilled by the party.
This procedure, in our opinion, fully complies with the provisions reflected in Law No. 44-FZ and is legally correct. This conclusion is confirmed by emerging judicial practice.
But at the same time, the issue of the relationship between the calculation of penalties in civil transactions and in the contract system remains legislatively unresolved. On the one hand, Law No. 44-FZ is based on the provisions of the Civil Code of the Russian Federation and, therefore, must comply with the general principles laid down by the legislator as its basis. But, on the other hand, the contract system is an independent institution of law and has the right to resolve individual situations at its own discretion.

If you do not find the information you need on this page, try using the site search:

On September 9, changes to the rules for calculating fines and penalties for violations of the terms of government contracts came into force. Let's look at what new things have been brought to the contract system.

General provisions

The changes are introduced by Government Decree No. 1042 of August 30, 2017.

It repeals Government Decree No. 1063 of November 25, 2013 and radically changes the rules for calculating penalties for late fulfillment of obligations under a government contract, as well as for non-fulfillment and improper fulfillment of the terms of the transaction by both the customer and the supplier. The resolution supplements Art. 34 of Law No. 44-FZ, namely parts 5-9. This article contains general rules for calculating penalties.

The changes also affected Resolution No. 570 of May 15, 2017. Firstly, the paragraph in which previously made changes were approved, approved by the no longer current PP No. 1063 of November 25, 2013, became invalid. Secondly, subparagraph “c” of paragraph 2 has been supplemented; now it provides for the supplier’s liability not only for improper execution of a government contract, but also for failure to perform at all.

The general new rule is that the amount of all penalties charged to both the customer and the contractor cannot exceed the contract price.

Changes in the calculation of penalties

It is worth noting that there have been no changes in the calculation of penalties for late fulfillment of obligations on the part of the customer. As established in paragraph 5 of Art. 34 44-FZ, for each day of delay, 1/300 of the refinancing rate of the Central Bank of the Russian Federation of the amount not paid on time is charged.

Please note that currently the refinancing rate of the Central Bank of the Russian Federation is equal to the key rate of the Central Bank of the Russian Federation.

From June 19, 2017 it is 9% per annum. Thus, to find out how much you will have to pay for a day of delay, you need to multiply the amount of the government contract by 0.0003%.

But the calculation of supplier penalties has changed in a revolutionary way. Previously, an inconvenient formula was used. Now the calculation has become simpler. Supplier penalties are calculated and accrued in the same way as the customer: for each day of delay in fulfilling obligations in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation from the price of the government contract, which must be reduced by the amount of obligations actually fulfilled.

Changes in the calculation of fines

The fine, as before, is a fixed amount, which is determined as a percentage of the price of the government contract.

Working with the online penalty calculator under 44-FZ

Now it has been added to this postulate that for multi-stage contracts the percentage is calculated based on the cost of each stage. That is, each stage will have its own fine amount.

Under the old order, the violator would always pay 0.5% for any contract whose value was above 100 million rubles. The new rules expand the range of contract prices and recovery percentages from them. Now suppliers will pay fines based on the information provided in the table.

The procedure for determining penalties for the following cases has also been added:

1. If the purchase was carried out only for SMP and SONKO (Part 1 of Article 30).
2. If the procurement participant became the winner by offering the highest price for the right to conclude a contract.
3. If obligations that do not have a value expression are violated.
4. If the contractor did not involve subcontractors from among SMP and SONKO, although this was stipulated in the contract.

The penalty for poor quality construction work is 5% of the cost of these obligations.

The procedure for calculating fines for violating customers has also undergone changes. Now these are fixed amounts from 1,000 to 100,000 rubles. depending on the contract price for each violation. The old document established only interest in this case.

In this article we will look at the main issues relating to the payment of penalties for government transactions.

How to check the calculated penalty

To begin with, it is worth noting that the payment of penalties (Article 394 of the Civil Code of the Russian Federation) is separated from compensation for losses. In a law or contract, these concepts may be related as follows:

1. There are sanctions, losses are not paid.
2. Compensate for losses and pay sanctions.
3. The creditor can choose whether to pay damages or penalties.

No. 44-FZ understands the concept under consideration as fines and penalties. Art. 34 allows both the customer and the supplier to demand compensation from the other party in case of missed deadlines or failure to fulfill obligations under a government transaction. This condition and payment procedure are also included in the text of the government contract.

It is important to know that penalties are charged only for obligations not fulfilled on time for each day of delay. The counting of days begins after the deadline established in the contract has expired. The price of one such day is 1/300 of the refinancing rate of the Central Bank of the Russian Federation, current at the time of payment of penalties (Part 10 of the Rules, approved by PP No. 1042 of 08/30/2017).

The size of this sanction for customers is calculated relative to the amount not paid by them to suppliers on time. The latter take as their starting point the day when their obligations became overdue. In this case, the calculation is based on the contract amount reduced by the cost of timely fulfilled obligations.

Both parties pay fines for complete or improper fulfillment of the terms of the transaction. These amounts are recorded in PP No. 1042 dated 08/30/2017.

We calculate penalties and fines according to Law No. 44-FZ

They are calculated as a percentage of a certain price of the contract or its individual stage.

No penalty fee will be charged if the party proves that the violation of the terms of the contract occurred due to force majeure (Part 9 of Article 34).

In relation to bank guarantee No. 44-FZ in clause 3 of part 2 of art. 45 requires that such a document include the obligation of the guarantor bank to transfer to the customer as a penalty 0.1% of the amount to be paid by the supplier. These accruals are made daily after the expiration of the terms established by the contract.

There are no norms defining the sources from which the penalty of the Civil Code of the Russian Federation or 44-FZ is paid. Therefore, we can conclude that the customer and the supplier have the opportunity to agree on where the fine or penalty will be withheld (security, a separate amount, a reduction in payments) so that payment of the contract minus the penalty is made correctly.

How to pay a penalty and confirm it

If violations are detected, the customer must document this fact and send a demand to the supplier to pay a specific fine or penalty (Parts 5 and 6 of Article 34 No. 44-FZ).

In turn, the executor, having received the claim, performs the following actions:

1. Checks the amount calculated by the buyer.
2. Draws up a payment order indicating the appropriate purpose of the payment.
3. Transfers money to the customer's bank account specified in the contract.
4. Verifies that the buyer has received funds.

If, when checking the amount of the penalty, the supplier finds inaccuracies, he must notify the customer in writing with a detailed description of his objections. Also, the parties will be able to save each other from difficulties in this matter by prescribing a similar procedure in the agreement. Thus, payment under the contract minus the penalty is confirmed by a document with the fact of violation and the calculation of sanctions, as well as a payment order.

Such disputes can be resolved in court, but voluntary payment of the penalty will help save time and money for both parties.

Possible consequences

The presence of sanctions on government transactions for the supplier not only entails additional costs on his part, but also spoils his integrity.

So, in part 3 of Art. 37 No. 44-FZ it is established that this quality is confirmed by information from the register of contracts. The supplier who has fulfilled the contracts will be considered bona fide.

The register of contracts must include data on penalties and fines (clause 10, part 2, article 103).

Therefore, in future transactions, customers will be able to assess the responsibility of the contractor even before starting work with him.

Federal laws dated June 4, 2014 N 140-FZ, dated December 1, 2014 N 416-FZ, dated December 31, 2014 N 498-FZ, dated July 13, 2015 N 227-FZ, dated December 30, 2015 N 469-FZ, dated July 26. 2017 N 198-FZ, dated December 29, 2017 N 475-FZ) (see text in the previous edition) ConsultantPlus: note. From July 1, 2018, Federal Law dated December 31, 2017 N 504-FZ amends Part 16 of Article 34. See the text in a future edition. 16. In cases established by the Government of the Russian Federation, a contract is concluded providing for the purchase of goods or work (including, if necessary, design, construction of an object that should be created as a result of the work), subsequent maintenance, repair and, if necessary, operation and (or ) disposal of the delivered goods or the object created as a result of the work (life cycle contract).

Features of calculating penalties according to Federal Law No. 44

(Part 16 as amended by Federal Law No. 396-FZ dated December 28, 2013) (see.

We calculate penalties and fines according to Law No. 44-FZ

The Info contract includes a provision for banking support of the contract in cases established in accordance with Article 35 of this Federal Law. 27. The contract includes a mandatory condition on the timing of the customer’s return to the supplier (contractor, performer) of funds contributed as security for the performance of the contract (if such a form of security for the contract is used by the supplier (contractor, performer).
28.

How are fines calculated under Federal Law 44?

Rate C = SCB x DP = 0.02 x 0.0825 x 14 = 0.0231; The total amount payable by the supplier: P = (C - B) x C = (800,000 - 0) x 0.0231 = 18,480 rubles. Of course, based on the formal approach, the customer is obliged to use exactly the described method for calculating penalties.

Subsequently, in the event of a dispute, the amount calculated by the customer may be reduced by the court at the request of the counterparty on the basis of Art. 333 of the Civil Code of the Russian Federation (see also paragraph 4 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 22, 2011 N 81). At the same time, in our opinion, the above procedure for calculating penalties and the result obtained are not consistent with the general principles of civil law.

A penalty is one of the measures of civil liability and, as a general rule, has a compensatory nature.

Calculator for calculating penalties for late execution of a contract under 223-FZ and 44-FZ

Clause 6 of the Rules establishes that a penalty is accrued for each day of delay in the fulfillment by the supplier (performer, contractor) of the obligation provided for by the contract, and is established in the amount of no less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation effective on the date of payment of the penalty from the contract price, reduced by an amount proportional to the volume of obligations stipulated by the contract and actually fulfilled by the supplier (contractor, performer), and is determined by the formula: P = (C - B) x C, where: C - contract price; B - cost of what was actually fulfilled on time by the supplier (contractor, performer ) obligations under the contract, determined on the basis of a document on acceptance of goods, results of work, provision of services, including individual stages of contract execution; C - rate.

How to calculate fines and penalties under Federal Law 44

Important: The subject of the contract may be the simultaneous performance of work on the design, construction and commissioning of capital construction projects. The procedure and grounds for concluding such contracts are established by the Government of the Russian Federation.
(Part 16.1 introduced
See the text in a future edition. 18.

Company

Therefore, in the situation under consideration, the penalty should be accrued starting from the day following the day of expiration of the fifteen-day delivery period for the goods. Further, literally from the provisions of Part 7 of Art. 34 of Law N 44-FZ and the Rules it follows that in the absence of a condition on the stage-by-stage execution of the contract, the penalty is accrued from the moment of delay of the obligation provided for by the contract, and is calculated based on the total cost of unfulfilled obligations, regardless of the fact of fulfillment of obligations during the period of delay.
Despite the fact that according to paragraph.

Article 34. contract

Civil Code of the Russian Federation, we believe that in the above situation the penalty should be calculated taking into account the actually fulfilled obligations, the period of delay and based on the contract price reduced by an amount proportional to the volume of obligations provided for in the contract and actually fulfilled by the supplier. Let us give an example of such a calculation, using the same initial data as above.

Attention: Since during the period of delay (from February 17 to March 2) the supplier partially fulfilled his obligations in the amount of 300,000 rubles, we believe that the penalty for late delivery of the first and remaining parts of the goods should be calculated separately. Since the first day of delay is February 17, and the obligation to supply goods in the amount of 300,000 rubles was fulfilled on February 20, the supplier’s delay in obligations at the moment will be 4 days (DP = 4).
The period for fulfilling the obligation under the contract (from the date of conclusion of the contract) will be 15 days (DC = 15).

Calculator for calculating penalties for late execution of a contract

A contract may be declared invalid by a court, including at the request of a control body in the field of procurement, if the personal interest of the head of the customer, a member of the procurement commission, the head of the contract service of the customer, or the contract manager in the conclusion and execution of the contract is established. Such interest lies in the possibility of the said officials of the customer receiving income in the form of money, valuables, other property, including property rights, or services of a property nature, as well as other benefits for themselves or third parties.

(Part 22 as amended by Federal Law dated December 28, 2013 N 396-FZ) (see text in the previous edition) 23.

Calculation of penalties for the execution of a contract with different periods of delay

Thus, a supplier who has allowed a short supply of goods in a separate delivery period is obliged to make up for the short-delivered quantity of goods in the next period (periods) within the validity period of the supply contract, unless otherwise provided by the contract (Clause 1 of Article 511 of the Civil Code of the Russian Federation). In this case, the penalty established by law or the supply contract for short-delivery or late delivery of goods is collected from the supplier before the actual fulfillment of the obligation within the limits of his obligation to make up for the under-delivered quantity of goods in subsequent delivery periods, unless a different procedure for paying the penalty is established by law or contract (Article 521 of the Civil Code of the Russian Federation ). In other words, the supplier under a supply agreement providing for the delivery of goods in separate batches is responsible for the delay in delivery of each batch of goods, unless otherwise provided by the supply contract.

Violation of obligations under a contract always leads to infringement of the interests of a bona fide counterparty - but if this concerns government procurement, then the injured party ultimately turns out to be ordinary citizens.

Therefore, methods for calculating fines and penalties for violation of government contracts are specified by the legislator separately, and today these purposes are served by determining the amount of the fine accrued in the event of improper fulfillment by the customer, supplier (contractor, performer) of the obligations stipulated by the contract (with the exception of delay in fulfillment of obligations by the customer, supplier ( contractor, performer)), and the amount of the penalty accrued for each day of delay in fulfillment by the supplier (contractor, performer) of the obligation stipulated by the contract, approved. by Decree of the Government of the Russian Federation of November 25, 2013 No. 1063 (hereinafter referred to as the Rules).

Let's look at examples of how to determine the amount of the penalty and include a section on the responsibility of the parties in a government contract.

Customer's responsibility

Penya

The amount of the penalty that is collected for delay in fulfilling the customer’s obligations is not regulated - therefore, you need to focus directly on the Federal Law of April 5, 2013 No. 44-FZ "" (hereinafter referred to as Law No. 44-FZ).

Table 1. Amount of fine collected from the customer in case of improper performance of his duties under a government contract

The contract price scale is not formulated entirely correctly, so the question arises: what size of the fine should be prescribed if the contract price is, say, exactly 50 million rubles. – but it is not difficult to predict the customer’s behavior in this case: most likely, a smaller fine will be stipulated in the contract. By the way, the same problem arises when determining the amount of the supplier’s fine.

Responsibility of the supplier (performer, contractor)

Penya

For suppliers who are late in fulfilling a contract, penalties are calculated according to a much more complex scheme compared to calculating penalties for unscrupulous customers. In its most general form, the formula for determining the size of the penalty is as follows ():

P = (C – V) x C,

C– contract price;

IN– the cost of the obligation under the contract actually fulfilled on time (determined on the basis of documents on acceptance of goods, results of work, provision of services, including individual stages of contract execution);

WITH– bet size.

And if with the first components - C And IN– no questions arise, then the rate calculation ( WITH) is produced in several stages. The formula for determining the bet size itself is quite simple ():

C = C CB x DP,

With the Central Bank– the size of the refinancing rate on the date of payment of the penalty, determined taking into account the coefficient TO;

DP– number of days of delay.

As we see, there is also a coefficient K, the value of which depends on how serious the delay was by the supplier. This coefficient itself is also quite easy to calculate ():

K = (DP / DK) x 100% ,

DP– number of days of delay;

DK– deadline for fulfilling the obligation under the contract (number of days).

The next stage is to determine the amount by which the refinancing rate must be multiplied (this indicator is determined based on the size of the coefficient TO), To obtain With the Central Bank ():

Table 2. Rules for determining the coefficient by which the refinancing rate is multiplied (depending on the value of the coefficient K)

Here we are again faced with an incorrect definition of scale ranges - for example, it is completely unclear how to calculate the rate if the coefficient K is 50%. Most likely, over time, the scale of this coefficient will be brought into a more familiar and unambiguous form: 0-49%, 50-99%, 100% and more.

Let's calculate the amount of the penalty using specific examples.

EXAMPLE 1


Let’s say the contract price is 500 thousand rubles, the contract execution period is 30 days, the period of delay is 9 days, the contract was not executed even partially on time.

First we define the coefficient TO:

K = (9 / 30) x 100% = 30%

Since this value falls in the range "0-50%", then in the rate calculation formula WITH we will use With the Central Bank, equal to 0.01 value (remember, today its size is 8.25%):

C = (0.01 x 0.0825) x 9 = 0.007425(or 0.74%)


Finally, you can proceed to calculating the penalty itself (we have the value IN will be equal to zero, since there was no partial execution of the contract):

P = (500,000 rub. – 0 rub.) x 0.74% = 3,700 rub.

If we imagine that the contract was partially performed by the supplier, then when calculating the penalty, it is necessary to take into account the amount of what was performed was estimated at. For example, the act of acceptance of completed work indicates that their cost is 200 thousand rubles:

P = (500,000 rubles – 200 thousand rubles) x 0.74% = 2220 rubles.

EXAMPLE 2


Let’s imagine that the data is the same (the contract price is 500 thousand rubles, the contract period is 30 days, there is no partial fulfillment), but the delay is 18 days. Let's start from the end again, by calculating the coefficient TO:

K = (18 / 30) x 100% = 60%

The coefficient value changes automatically TO, which must be taken into account: it falls in the range of “50-100%”, and therefore, the value of the refinancing rate (8.25%) must be multiplied by 0.02:

C = (0.02 x 0.0825) x 18 = 0.0297(or 2.97%)

The final rate by which the penalty is calculated has increased significantly compared to the first example, and the size of the penalty, of course, will also increase:

P = (500,000 rub. – 0 rub.) x 2.97% = 14,850 rub.

EXAMPLE 3


Finally, we will calculate the penalty for the case of a serious delay in the execution of the contract, exceeding the entire period of its execution - for example, 42 days:

K = (42 / 30) x 100% = 140%

The range of coefficient values ​​has changed again TO, now it is “100% or more” - that is, the value of the refinancing rate (8.25%) must be multiplied by 0.03:

C = (0.03 x 0.0825) x 42 = 0.104(or 10.4%)

Accordingly, the final amount of the penalty will be equal to:

P = (500,000 rub. - 0 rub.) x 10.4% = 52,000 rub.

Fine

There are also fines for suppliers, which are applied in all cases of improper fulfillment of obligations, with the exception of delay.

Table 3. The amount of the fine collected from the supplier (performer, contractor) in the event of improper performance of duties under a government contract (clause 4 of the Rules)

The amount of fines looks more impressive compared to the amount of delay, which may not have a very favorable effect on the performance of the contract. For example, if the deadline for its execution is coming to an end, and the contractor does not have time to complete the work efficiently, then there is no point in handing it over in an unfinished form: it will be much “cheaper” to fulfill the contract with a delay.

In addition, if a poor-quality result of work is nevertheless delivered in this case, the supplier will have to not only pay a fine, but also correct the deficiencies. This will most likely lead to the fact that the work will be completed with high quality after the expiration of the contract - and therefore, the customer can also charge a late fee; there is no direct prohibition on this.

Very, very dishonest

The rules do not determine how the penalty for non-fulfillment of obligations should be established; we are talking only about improper performance of the contract or delay in its performance.

When adopting Law No. 44-FZ in its original version, the legislator completely forgot to mention liability for failure to fulfill a contract - the corresponding amendments were made only at the end of 2013 (Federal Law of December 28, 2013 No. 396-FZ ""). As a result, these rules stipulate that the penalty for non-fulfillment or improper fulfillment of obligations under the contract must be fixed in the contract in the form of a fixed amount, which is determined taking into account the requirements - but the Rules themselves only deal with improper fulfillment or delay.

It is clear that in the event of non-fulfillment of the contract, the interests of the customer will be guaranteed by ensuring the execution of the contract (for example, payment under a bank guarantee in accordance with), and the supplier will be included in the register of unscrupulous suppliers ().

But this does not relieve the customer from the obligation to provide in the draft contract for liability for non-fulfillment in the form of a fixed amount of a fine (). The simplest thing that can be done in such a situation to prevent claims from the FAS of Russia on a formal basis is to change the wording of the contract so that the fixed amount of the fine applies to “non-fulfillment or improper fulfillment of obligations under the contract.”

In conditions of uncertainty

The fixed amount of the fine must be calculated already at the stage of developing tender documentation. However, this is difficult to do, since the final price of the contract, depending on which the amount of the fine will be calculated, will be known only after the winner is determined.

Therefore, you can include in the contract a clause with blank fields, for example: “For non-fulfillment or improper fulfillment of the terms of this Contract, the Supplier shall pay the Customer a fine in the amount of ____% of the Contract price defined in clause ____ of this Contract, which amounts to ____ rubles.” Then, already at the stage of concluding the contract, the corresponding values ​​are entered into the empty fields.

If the customer is confident that, as a result of the purchase, the initial price will not fall to such an extent as to fall into another range (see Tables 1, 3) (for example, in the procurement documentation - 3.5 million rubles, and according to the results of the competition, the winner the participant who offered 2.9 million rubles will be recognized), then you can immediately indicate a specific percentage.

By the way, Law No. 44-FZ also requires the amount of the penalty to be specified in the contract () - obviously, in this case, you can simply duplicate the provisions.

An exception

In conclusion, we recall that in accordance with the customer may not comply with the requirement for mandatory stipulation in the contract of the amounts of fines and penalties if the purchase is made from a single supplier:

• for an amount not exceeding 100 thousand rubles. ();
• to conclude a contract to visit a zoo, theater, cinema, concert, circus, museum, exhibition or sporting event ();
• if the subject of purchase is medicines ().

Reading time: 6 min

In order to fully and correctly calculate penalties in the form of fines and penalties in the event of poor performance of a contract, it is necessary to know the legal basis of this process.

Dear readers! Each case is individual, so check with our lawyers for more information.Calls are free.

Regulatory framework and basic concepts requiring interpretation

Currently, the main regulations are:

• Decree of the Government of the Russian Federation No. 1042, dated August 30, 2017. This Resolution approved the Rules, in accordance with which all amounts are calculated depending on the amount of the contract in question;
• Article 424 of the Civil Code of the Russian Federation, which provides an interpretation of the concept “Price”, which is necessary to understand the key terms used in the above Government Resolution;
• Article 330 of the Civil Code of the Russian Federation, defining the delay in fulfilling obligations under the contract;
• Article 395 of the Civil Code of the Russian Federation, which provides for penalties for violations of the obligations of the financial plan (the provisions of this article may be applicable in cases where we are talking about failure to return performance under the contract on time, as well as in cases where payment under the contract has not been made on the part of the customer within the required time frame) .

Decree of the Government of the Russian Federation No. 1042 contains the term “cost obligation”.

The current Russian legislation, as well as the regulations adopted in pursuance of federal legislation, do not contain a definition of this term.

Based on the established practice of law enforcement, as well as on the basis of the provisions of Article 424 of the Civil Code of the Russian Federation, at present, value obligations should be understood as such obligations of the parties under the contract or that can be expressed in monetary terms. Accordingly, obligations that do not have a monetary expression should be understood as those obligations that cannot be measured in monetary terms.

Example 1. The customer entered into a contract for the supply of flowers in the form of bouquets. Bouquets must be delivered according to customer requests strictly in the form described in the technical specifications for the contract, as well as in a specially agreed upon form. The customer sends one request for the supply of a bouquet in accordance with the technical specifications. The contractor put together a different type of bouquet, but upon inspection it turned out that the flowers in the bouquet were stale and also differed in size (smaller) from those stated in the technical specifications. In this case, we are talking about a violation of cost-type obligations, since the bouquet (in accordance with the terms of the contract) has its own price, by the amount of which the customer suffered losses, since he had to urgently look for a replacement for such a bouquet.

Example 2. The customer entered into a contract for the supply of automotive consumables (antifreeze and low-freezing windshield washer fluid). During the first delivery, the goods did not meet the physical and chemical properties stated in the delivery list. The supplier replaced the antifreeze (the customer accepted it in full), but refused to change the low-freeze windshield washer fluid, citing the fact that the manufacturing plant only has the option that was supplied the first time. In this case, refusal to replace is an expression of violation of a non-cost obligation under the contract.

Calculation of penalties for the customer

When calculating penalties under the contract (fines and penalties), the customer must use the Rules that were approved under Government Decree No. 1042 of August 30, 2017. However, before using this Resolution, it is necessary to determine by what parameters the penalty will be considered:

• whether there was a delay in fulfilling obligations, and how many days it is. This indicator must be determined, since it forms the basis for calculating penalties under the contract;
• whether there were violations of other obligations under the contract on the part of the contractor, which are divided into violations of obligations of the value and non-value type.

In the event that the contractor under the contract has committed a delay in fulfilling his obligations, the amount of penalties will be calculated according to the formula:

1/300 St * C * D, Where:

• St
• C
• D– number of days of delay.

Example: The contract price is 311,704.04 rubles. The payment date for late fees is April 13, 2019. The refinancing rate is 7.75%.

Delivery under the contract was carried out in three stages:

• in the first stage the delay was 29 days. The goods were delivered in full, but were not accepted by the customer due to the non-compliance of part of the goods with the requirements of the terms of the contract. As a result, the cost of the goods that the customer accepted is 23,649.80 rubles. The amount of the delay is calculated from the entire contract price, since the contract was executed in full with a delay of 29 days. The amount of penalties will be (1/300 * 7.75%) * 311,704.04 * 29 = 2,335.08 rubles;
• delivery delay for the second stage is 9 days. As part of the second stage, 191,037.99 rubles were delivered. The amount of penalties is calculated from the contract price, which was reduced by the amount of goods accepted at the first stage, that is, from 288,054.24 rubles. The amount of penalties will be (1/300 * 7.75%) * 288,054.24 * 9 = 669.69 rubles;
• at the third stage, the delivery of goods was completed in the amount of 97,016.25 rubles, however, with a delay of 21 days. The amount of penalties will be calculated from the amount remaining unfulfilled on time, namely from 97,016.25 and will be: (1/300 * 7.75%,) * 97,016.25 * 21 = 526.26 rubles;
• the total amount of penalties is calculated by adding all amounts received for each stage of delivery and amounts to 3531.03 rubles.

In the event that the contractor under the contract has violated his obligations under the contract in any way other than delay, in accordance with the provisions of Resolution 1042, penalties may be imposed on him in the form of a percentage of the contract price (if we are talking about a violation of cost obligations) or in the form of a fixed amount (for non-valuable obligations). Such penalties are also included in the contract calculation.

If a contract is concluded with a contractor who is not a small business entity, then for violation of cost obligations the following sanctions are imposed on him in the form of a percentage of the contract price:

• 10% provided that the price of the signed contract does not exceed 3 million rubles;
• 5% at a price ranging from 3 to 50 million rubles;
• 1% , if the price is in the range from 50 to 100 million rubles;
• 0,5% at a price ranging from 100 to 500 million rubles;
• 0,4% - if the contract price is from 500 million to 1 billion rubles;
• 0,3% at a price ranging from 1 to 2 billion rubles;
• 0,25% at a price of 2 to 5 billion rubles;
• 0,2% , if the price is in the range from 5 to 10 billion rubles;
• 0,1% with a contract price exceeding 10 billion rubles.

If the contractor under the contract is a confirmed subject, then the penalties for him are different:

• 3% with a contract price of up to 3 million rubles;
• 2% , if the contract price is in the range from 3 to 10 million rubles;
• 1% , if the contract price is in the range from 10 to 20 million rubles.

If we are talking about a violation of non-cost obligations, regardless of who is the contractor under the contract (a representative of the SMP or not), fines are assessed in the form of a fixed amount depending on the contract, namely:

• 1,000 rubles if the contract price does not exceed 3 million rubles;
• 5,000 rubles with a contract price ranging from 3 to 50 million rubles;
• 10,000 rubles, if the contract price is in the range from 50 to 100 million rubles;
• 100,000 rubles with a contract price of 100 million rubles.

Calculation of penalties for the supplier

The supplier calculates penalties for failure to fulfill its obligations based on the provisions of Part 9 of the Rules, approved by Decree of the Government of the Russian Federation No. 1042 of August 30, 2017. In accordance with the provisions of this article, the customer for improper performance of obligations under the contract, with the exception of delay, is subject to penalties in the form of a fixed amount based on the contract price, namely:

• 1,000 rubles for a contract price of up to 3 million rubles inclusive;
• 5,000 rubles, if the contract price is in the range from 3 to 50 million rubles;
• 10,000 rubles with a contract price of 50 to 100 million rubles;
• 100,000 rubles, if the contract price exceeds 100 million rubles.

If the customer does not timely pay the funds due to the contractor as remuneration under the contract, then a fine in the form of interest on the amount of the debt is imposed on the customer based on the provisions of Article 395 of the Civil Code of the Russian Federation.

Interest on the debt amount is calculated in the same way as when calculating penalties in relation to the performer:

1/300 St * C * D, Where:

• St– the value of the refinancing rate of the Central Bank, which is established by the regulator on the date of payment of penalties;
• C– the contract price or the amount of unfulfilled obligations;
• D– number of days of delay.

Example. The contract amount is 311,000 rubles. The executor is a representative of the SMP. For such performers, the payment period under the contract is no more than 15 days after final acceptance of the results of the contract. The customer paid the due remuneration after 30 days, that is, according to the usual procedure, with a delay of 15 days. The amount of the penalty will be: (1/300 * 7.75%) * 311,000 * 15 = 1205.13 rubles.

Online calculator

It happens that organizations are not able to fulfill their obligations under the contract on time. According to the Federal Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” dated 04/05/2013 No. 44 - Federal Law, there are a number of measures to influence the parties to the contract.

It doesn’t matter for what reason the contract is untimely and possibly improperly executed. The contract usually specifies all possible options for lawful penalties both from the party under the contract, from both the customer and the contractor. Our lawyer in the field of procurement, tenders and bidding, issues and other problems will help you sort everything out: professionally, profitably and on time.

Improper execution of contract 44-FZ

In the event that there are still delays in the delivery of goods or the construction of a particular facility, the second party has the right to demand the following compensation:

• Payment of penalties (fines and penalties) for each day of delay;
• Payment of losses incurred.

The party whose rights have been violated can prepare the matter the very next day after the contract is overdue. The claim must indicate the calculation of the requirements and state the essence of the problem. If the contractor or supplier does not fulfill the requirements specified in the claim, the text of the claim will be examined in court to determine whether you have the right to make certain claims. Only a court can resolve a dispute if the other party believes that it was unable to fulfill the terms of the contract for reasons beyond its control, therefore both parties will need a competent and qualified lawyer.

HEALTHY: Watch the VIDEO on the topic of our lawyer’s participation in the antitrust dispute and subscribe to the YouTube channel to be able to receive legal advice through comments on the video.

Reduction of penalties under 44-FZ

There are several rules, following which you will significantly reduce the risk of making a claim for payment of a penalty:

• Carefully study the contract; it happens that the execution of the contract must be two-sided, for example, the customer did not send a request for the supply of equipment or construction materials on time;
• If there is even the slightest possibility that the contract will not be fulfilled, it is necessary to urgently prepare a letter to the customer with a warning;
• It is necessary to agree that all counterparties prepare invoices and other closing documents in advance;
• Send all the necessary documents to the other party under the contract in advance, since even the best employees make mistakes, so it will always be better if you have time to correct your own mistakes.

The penalty is accrued for the entire amount under the contract minus the amount of actually fulfilled obligations under the contract. But don’t be afraid, there is a real possibility of reducing penalties to the minimum established. The fact is that customers use in their calculations the formulas established by the legislator by default. But it is also necessary to calculate according to the Central Bank refinancing rate, therefore, the difference in calculations can be colossal. It is also worth noting that if the amount of interest is clearly disproportionate to the amount specified in the contract, in this case the court will be obliged to reduce the amount of interest collected.

What is considered improper performance of a contract?

If we look at the example of the law to understand what improper execution of a contract is, then Art. 94 Federal Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”, which contains a clear division of improper execution of the contract, which is as follows:

• The goods were not accepted within the time specified in the contract, for more details, follow the link in the blog;
• The customer did not pay for the goods or a certain stage within the agreed period;
• There was no interaction between the customer and the supplier or construction contractor at a certain stage of the contract.

In this case, timing is very important, which means that even if the goods were delivered, but not within the agreed time frame, the contract may be considered not fulfilled, moreover, the customer may claim losses incurred in connection with untimely delivery of goods.

Withholding penalties from payment under the contract

It is worth noting that the legislation of the Russian Federation does not provide for the deduction of penalties from payment under the contract, and nevertheless, this is only possible if this fact is described in the contract. It also happens that the contractor himself agrees that he does not meet the agreed deadlines, in which case he agrees to withhold the penalty from the amount in the contract. Of course, this transaction must be documented and signed on both sides, so that the opposite party does not later turn out to be guilty.

Collection of penalties under 44-FZ

In our country, such a penalty as a penalty under Article 44 of the Federal Law is very effective. Indeed, when concluding the contract, both parties were confident in their abilities in what they agreed to perform. In reality, it doesn’t always work out the way we want, so punishment in the form of penalties and other interest and fines is the most common judicial practice. It also happens that the parties come to a settlement agreement right in the courtroom, but the very fact of going to court forever dissolves the relationship between the parties.

The party is exempt from paying a penalty (fine, penalty), if he can prove that the failure to fulfill the contract or the untimeliness of certain actions was due to reasons beyond the control of the organization. Whether the reasons are some kind of natural disaster or vice versa, the reason lies in the actions of the customer himself. In any case, the party will have to work hard to prove the absence of their guilt. The evidentiary procedure includes collecting the necessary papers, questioning witnesses and employees of the parties to the contract. It is best to entrust this action to a lawyer who has already encountered similar procedures in court more than once.

HEALTHY: watch the video and learn how to participate in tenders correctly, ask your question in the comments of the video and get free advice from a government procurement lawyer today

Collection of a fine under a government contract

This clause must be present in the contract itself, although the law directly provides for such a right of the customer. You already studied it when you conducted it? Or not? The only question is the amount of the fine. It is worth noting that the collection of a fine as a percentage of the contract amount is not allowed; the amount must be indicated as a specific figure for collection. The court may also find the penalty provision inconsistent, and therefore completely cancel the penalties against the party. Read about it at the link. What else would you like to say?

Write your question in the comments or sign up for a consultation today, let’s solve the problem together: professionally, on favorable terms agreed with you and on time!!!