Termination of the state contract under 44 fz. Termination of the contract by agreement of the parties: sample and form

The customer and the supplier have the right to terminate the contract unilaterally. The grounds are specified in Art. 95 44-FZ. We will talk about the algorithm for terminating the contract unilaterally in 2019 in the article.

Termination of the contract under 44-FZ unilaterally

The contract can be terminated in several ways: by agreement between the parties, by court, and also unilaterally. The first option is a peaceful solution to the conflict. Termination by one of the parties is possible if there is such a clause in the contract.

You need to understand that not only the customer, but also the supplier has such an opportunity if the state customer violates obligations.

When can the customer

The grounds are spelled out in Art. 95 44-FZ and art. 523 of the Civil Code of the Russian Federation. The customer must have good reasons: significant violations on the part of the supplier. For example, if he repeatedly missed delivery dates, delivered goods of poor quality. Sometimes the customer is obliged to terminate the contract unilaterally:

• the supplier submitted false information and only because of this won;
• products do not comply with the procurement documentation;
• an investment contract for a product manufactured or modernized in the Russian Federation has been terminated.

As for the timing, the customer has the right to terminate the contract at any time before the delivery of the result of the work (Article 717 of the Civil Code of the Russian Federation). At the same time, he must pay for all goods, works and services for which there are no claims. Please note: if an examination is appointed, the customer can terminate the contract only if the expert confirms significant shortcomings.

Step-by-step instructions for terminating a contract

The customer issues a decision on the unilateral termination of the contract and publishes it in the EIS. He has 3 days to notify the supplier. The notification method can be any - by mail, fax, e-mail. The main thing is to be able to confirm the receipt of information by the addressee. By law, the contract is considered terminated 10 days after that.

How to reflect in the EIS

After the contract is terminated unilaterally under 44-FZ, the customer must reflect this fact in the register of contracts within 3 days, in the report within 7 days, and also publish the decision in the EIS within 1 day. How to place information about the termination of the contract in the register of contracts, we will describe further.

On the main page of the register of contracts on the tab "Execution" in the context menu of the contract, click on "Execution (termination) of the contract". To generate information about the termination of the contract on the "General information" tab, select the document type "Information on the termination of the contract". Fill in the fields:

• "Date of termination of the contract";
• "The grounds for termination of the contract";
• "Name of the document that is the basis for termination of the contract";
• "Document date";
• "Document Number";
• “Date of entry into force of the notification of the supplier (contractor, performer), notification of the customer”;
• Reason for termination of the contract.

Then go to the Contract Execution tab. If the contracting authority is a budgetary institution, when generating information on the termination of the contract, the page "Execution of the contract" does not need to be filled out.

If on the “General Information” tab a check mark was made in the field “Availability of information about the requirement to the bank to pay the amount of money under a bank guarantee”, on the “Termination of the contract” tab, check the box “Information on the termination of the supplier's obligations secured by a bank guarantee”.

Add documents in the Attachments section. Next, click on the "Finish" button. The generated information will be displayed on the "Documents" tab of the contract card. To place information about termination, you must select the "Submit for placement" item.

Arbitrage practice

As an example, let's take the decision of the Moscow Arbitration Court in case No. A40-205120 / 17-43-1824 of 06/09/2018. The administration of the settlement of Pervomayskoye in the city of Moscow signed a contract with ProfTorgStroy LLC for road repairs. The company coped on time, but the customer, without explaining the reasons, refused to take on the obligations. The contractor twice sent documents for signature, but did not wait for a response. There was no payment, no reasoned refusal to accept. As a result, the contractor decided that there were no complaints about his work. The amount of debt in 7 million 945 thousand rubles. he tried to recover from the customer through the court.

The court reminded the parties that the contract can only be canceled in cases established by law. However, in our case, there were no significant violations, since the customer did not file a claim. After the start of the trial, the customer suddenly became more active and filed a counterclaim against ProfTorgStroy LLC. He accused the company of violating the deadlines, SNiP and GOSTs.

With regard to the withdrawal of the contract, the customer violated the procedure established by law. He did not post the EIS documents, did not send a notification to the contractor, did not reconcile the calculations. At the same time, the court took into account the fact that the administration did not send a single claim on the fifth road. As a result, the court granted the contractor's claim for payment of the contract.

We will also consider an example from judicial practice, when the contractor unilaterally terminated the contract - Decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region in case No. A56-37913 / 2018 of 06/26/2018 St. Petersburg State Agrarian University (FGBOU VO SPbGAU) and JSC "Soyuzpechat North-West" signed a state contract for subscription services for newspapers, magazines and other periodicals. The Contractor undertook to complete the provision of services on December 31, 2017.

Is it necessary to terminate the contract if the supplier ceased its activities as an individual entrepreneur and opened an LLC during the execution of the contract?

Responsible Konstantin Edelev, expert of the State Order System

Yes need. In such a situation, the customer terminates the contract by agreement of the parties and conducts a new purchase for the remaining volume of goods.

It is possible to change the counterparty during the execution of the contract only if the rights of the old one are transferred to the new supplier during the reorganization of the legal entity. This rule is enshrined in Part 5 of Article 95 of Law No. 44-FZ. Since an individual entrepreneur is not a legal entity, this rule does not apply to him.

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

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

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

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

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

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

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

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

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

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

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

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

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

10) in case of conclusion of a contract with a single supplier (contractor, performer) in accordance with clauses 1, 8, 22, 23, 29, 32, 34, 51 of Part 1 of this Federal Law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2) if in the course of execution of a contract concluded in accordance with Clause 47 of Part 1 of this Federal Law for the supply of goods, the production of which was created or modernized and (or) mastered in the territory of the Russian Federation in accordance with a special investment contract, such a special investment contract is terminated. In this case, the termination of the contract concluded in accordance with clause 47 of part 1 of this Federal Law shall be carried out in the following order:

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

b) customers, no later than three working days from the date of receipt of the notification specified in subparagraph "a" of this paragraph, are obliged to make a decision on the unilateral refusal to execute the contract concluded in accordance with paragraph 47 of part 1 of this Federal Law;

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

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

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

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

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

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

17. In case of termination of the contract due to the unilateral refusal of the customer to perform the contract, the customer has the right to purchase goods, work, services, supply, performance, the provision of which was the subject of the terminated contract, in accordance with the provisions of paragraph 6 of part 2, paragraph 2 of part 2 of this Federal law.

17.1. In the event of termination of the contract on the grounds provided for in part 8 of this article, the customer has the right to conclude a contract with the procurement participant, with whom, in accordance with this Federal Law, a contract is concluded if the winner specified in part 3, part 6, the first sentence of part 17 evades from concluding a contract , the winner of the electronic procedure (with the exception of the winner provided for by Part 14 of this Federal Law) and subject to the consent of such a procurement participant to conclude a contract. The specified contract is concluded in compliance with the conditions provided for by Part 1 of this Federal Law, taking into account the provisions of Part 18 of this Article, and after the procurement participant provides, in accordance with this Federal Law, a security for the performance of the contract, if the requirement for security for the performance of the contract is provided for by the notice of procurement and (or) purchase documentation. At the same time, upon termination of the contract (with the exception of the contract specified in Part 9 of this Federal Law) in connection with the unilateral refusal of the customer to perform the contract, the conclusion of a contract in accordance with this part is allowed if, in connection with such termination in accordance with Part 7 of this Federal Law, The federal law adopted a decision to include information about the supplier (contractor, performer) with whom the contract was terminated in the register of unscrupulous suppliers (contractors, performers).

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

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

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

21. The decision of the supplier (contractor, performer) to unilaterally refuse to perform the contract comes into force and the contract is considered terminated ten days after the date of proper notification by the supplier (contractor, performer) of the customer about the unilateral refusal to perform the contract.

22. The supplier (contractor, contractor) is obliged to cancel the decision on unilateral refusal to perform the contract that has not entered into force if, within ten days from the date of proper notification of the customer about the decision to unilaterally refuse to perform the contract, the violations of the terms of the contract that served as the basis for the adoption said decision.

23. In case of termination of the contract in connection with the unilateral refusal of the party to the contract to perform the contract, the other party to the contract has the right to demand compensation only for the actually incurred damage, directly caused by the circumstances that are the basis for making a decision on the unilateral refusal to perform the contract.

25. Features of the procedure for the parties to the contract to decide on a unilateral refusal to execute the contract when purchasing goods, work, services under the state defense order may be established by Federal Law No. 275-FZ of December 29, 2012 "On the State Defense Order".

• Application of national treatment in procurement

  6. Regulatory legal acts provided for by parts 3 and 4 of this article and establishing restrictions, conditions for the admission of goods originating from foreign states, works, services, respectively, performed, provided by foreign persons, for the purposes of procurement, cases may be determined in which the customer, when performance of the contract is not entitled to allow the replacement of the goods or the country (countries) of origin of the goods in accordance with Part 7 of Article 95 of this Federal Law.

• Contract

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

  5) information on the possibility of unilateral refusal to perform the contract in accordance with the provisions of Parts 8 - 25 of Article 95 of this Federal Law;

Greetings, dear employees of contract services. It is no secret that stability in society is maintained thanks to the competent distribution of budgetary appropriations. That is why work with the 44th Federal Law and its competent application is a guarantee of stability. But it is not exactly.

Termination of a contract is somewhat similar to a marital divorce. The reasons for it are largely similar, but each time the situation is unique. However, the mistakes made by the parties, sealed by the state contract, are largely monotonous and equally sad.

In our article, we will try to explain how to competently and accurately carry out the procedure for unilateral termination of the contract, explaining this in the simplest possible way. A unilateral termination is your defense in the event of a fraudulent act by the other party.

Experienced participants understand when it is possible to negotiate and when it only hurts. However, despite the fact that termination is called unilateral, this does not mean at all that the other party cannot participate in this process in any way - on the contrary: there is a certain procedure, the violation of which can lead to the recognition of unilateral termination as illegal.

FOR THE CUSTOMER:

Someone did not share something with someone, or could not find a common language? In the process of execution, insoluble contradictions arose in the assessment of the actions of the parties to the contract? Perhaps you are faced with the fact that the Contractor has grossly and repeatedly violated the deadlines for fulfilling its obligations? (for more details, see paragraph 15 of article 95) It does not matter why, but if you want to immediately terminate the contract, first make sure of the following:

- your contract provides for unilateral termination

It is possible to conclude a state contract without the possibility of unilateral termination. In this case, termination is possible only through the court.

- you are really sure that you have notified the Contractor

To do this, you must carefully read the text of the contract itself, which is unusual for a person in a normal state. Your contract must contain information about the procedure for notifying the parties.

Example: You have entered into a contract for the supply of goods in batches according to the application. You send applications to the Supplier by e-mail, but there are no goods. You send a claim to the Supplier by e-mail, but there is still no response and no goods. You make a decision to terminate, and send it to the Supplier by e-mail and after 10 days, without waiting for a response, terminate the contract, posting information about the termination in the EIS.

However, the Supplier sues you and wins because he proves that he did not receive any letters from you. In response to your arguments and screenshots, indicating that letters were sent, he states that this mailbox has nothing to do with him. The contract does not stipulate correspondence by e-mail, or there is a condition according to which all electronic correspondence must be duplicated on paper.

Often the Customer conducts business correspondence carelessly, without proper registration. Remember, a simple letter to an email address, unless it is stipulated by the contract, has no legal force. Of course, having contrived, you can try to prove that there was a proper notification (for this you need to prove that the e-mail address is of a public nature and belongs to the Supplier, etc.), but is it necessary to create unnecessary difficulties in order to later prove that the scan of the letter without printing and the signature of the responsible person, sent to the mail of a third-party manager, is this a properly executed application?

Important: termination is a responsible matter, therefore only “hardcore” is only a paper letter with a notification to the legal address. All telephone conversations related to the contract are recorded only (you can record without notifying the other party).

- you put the goods in safekeeping and notified about it

If defects are found, you are obliged to put the goods in safekeeping, notifying the Supplier. Do this immediately, because by not taking the goods for safekeeping (on paper), you expose yourself to the risk of guilt for the condition and quality of the goods.

Are you really sure that the violation of the deadlines is a material violation

If the contract does not stipulate what terms are essential for you, then it is hardly possible to terminate the contract for delay in fulfilling obligations. Usually, the terms of the contract stipulate after what waiting period the Customer is entitled to terminate.

If you duly sent the Supplier an application for the supply of goods, or the contract strictly stipulates the terms for the performance of work / services, you can send a claim only when critical values ​​\u200b\u200bare reached (usually 30 days). If the deadlines for the completion of the work are not specified, you are obliged to accrue penalties, but not terminate the contract. Another case, if the terms are violated repeatedly: under such circumstances, you have the right to terminate.

- you yourself did not violate the conditions

Acceptance of the results of work or goods is a routine matter, but at the same time it is not devoid of creative potential. Please make sure that you have received the goods in due time and have properly checked the quality. Also, take care of the competent drawing up of an act on the identified violation. The act itself on the identified shortcomings must be sent along with the decision to terminate.

Important: if you included in the text of the contract a reference to the instruction on the procedure for accepting production for industrial purposes and consumer goods in terms of quality (P-7) and quantity (P-6), approved by the Decree of the USSR State Arbitration Court dated April 25, 1966, then act in strictly in accordance with it. Any violation of the terms and procedure for notification will be considered by the higher courts as a reason for refusing to satisfy the interests of the party that violated the instructions.

In the event that a decision has been made, it must be posted within 3 working days in the EIS and sent to the supplier in a proper manner. After notification (for details, see clause 12, article 95 - the date of notification is not the moment you send the letter, but the moment it is received / not received by the Contractor), you count 10 days and on day 11, if the violation is not eliminated, the contract is considered terminated. Take a calculator, calculate the penalties and fines, file a pre-trial claim and do not forget to send it to the information on the inclusion of the Contractor in the RNP.

FOR THE SUPPLIER:

If you are a supplier, you also have the right to terminate the contract unilaterally, if the Customer has this right, even if this is not specified in the text of the contract. In your case, everything is simpler: if the Customer violates the essential terms of the contract (including repeatedly, payment terms), you have the right to surprise the Customer with a unilateral termination of the contract. The notification procedure is exactly the same as that of the Customer, with the only difference that you do not place anything in the EIS. Surprisingly, the Customer does not always know what to do in such cases.

It is important to remember that any violation committed by the Customer, not recorded by you on paper or otherwise, has no evidentiary value.

Summary:

If you want to terminate the contract unilaterally, be friends with Art. 95 . If you find in the text of your contract something related to the USSR and P-6 and P-7, be EXTREMELY attentive to the deadlines and notifications (see the practice of the higher courts).

Determination of the Supreme Court of October 24, 2017 in case No. А07-9954/2016
Determination of the Supreme Court of October 12, 2015 in case No. A28-14637 / 2013
Determination of the Supreme Court of March 16, 2015 in case No. A59-5567 / 2013
Determination of the Supreme Arbitration Court of the Russian Federation dated April 12, 2013 N VAC-3489/13 in case N A21-2740/2012.
Determination of the Supreme Arbitration Court of the Russian Federation dated 05.07.2012 N VAC-8673/12 in case N A27-3941/2011;
Determination of the Supreme Arbitration Court of the Russian Federation dated March 5, 2012 N VAC-1816/12 in case N A56-73083/2010;
Determination of the Supreme Arbitration Court of the Russian Federation dated April 11, 2011 N VAC-4823/11 in case N A32-2862 / 2010-21/40;
Determination of the Supreme Arbitration Court of the Russian Federation dated March 23, 2011 N VAC-2781/11 in case N A41-6481/10;
Determination of the Supreme Arbitration Court of the Russian Federation dated November 26, 2010 N VAC-16010/10 in case N A56-17686/2009;
Determination of the Supreme Arbitration Court of the Russian Federation dated September 15, 2010 N VAC-12245/10 in case N A31-3296/2009;
Determination of the Supreme Arbitration Court of the Russian Federation of August 16, 2010 N VAS-10410/10 in case N A76-27471 / 2009-16-799/8;
Determination of the Supreme Arbitration Court of the Russian Federation dated May 4, 2010 N VAC-5361/10 in case N A32-22020/2009-35/503;
Determination of the Supreme Arbitration Court of the Russian Federation dated April 21, 2010 N VAC-4586/10 in case N A63-64 / 09-C2-12;
Determination of the Supreme Arbitration Court of the Russian Federation dated March 18, 2010 N VAC-2907/10 in case N A32-27540/2008-62/409;
Determination of the Supreme Arbitration Court of the Russian Federation dated March 16, 2010 N VAC-2784/10 in case N A50-5974/2009;
Determination of the Supreme Arbitration Court of the Russian Federation dated March 5, 2010 N VAC-2322/10 in case N A32-26907 / 2008-32 / 415.
Determination of the Supreme Arbitration Court of the Russian Federation dated 01.10.2009 N VAS-12301/09 in case N A62-2129/2008
Determination of the Supreme Arbitration Court of the Russian Federation dated 03.09.2009 N VAS-11268/09 in case N A63-3515/2008-C2-26
Determination of the Supreme Arbitration Court of the Russian Federation dated June 19, 2009 N VAC-7315/09 in case N A10-2453/08
Determination of the Supreme Arbitration Court of the Russian Federation of November 11, 2008 N 14418/08 in case N A76-26105 / 2007-17-304 / 38

Both 44-FZ and 223-FZ establish that the norms of the Civil Code of the Russian Federation 1 must be observed when making purchases. Among other things, the norms of civil legislation also regulate issues related to the unilateral termination of an agreement (contract) 3 . And if in the "scrutiny-procedural" 44-FZ there are separate provisions regarding the unilateral termination of the contract 2, then in the "framework" 223-FZ there are no such provisions. Therefore, with regard to the unilateral termination of contracts concluded under 223-FZ, the only legal regulatory document is the Civil Code of the Russian Federation. We note that the content of the provisions on the procurement of specific customers under 223-FZ, associated with the unilateral termination of contracts, should also not contradict the norms of civil law 4 . Let's take a look at these rules.

1. A unilateral refusal by a party under a contract to fulfill its obligations is allowed only in cases provided for by the Civil Code itself, other laws or other normative acts 5 .

For example, in relation to a contract of sale, civil law provides for the buyer's right to refuse to perform such a contract if the seller refuses to transfer the sold goods to the buyer 6 . Another example from the Civil Code - in relation to a rental agreement, the tenant has the right to withdraw from the agreement at any time by notifying the landlord in writing of his intention at least 10 days in advance 7 .

Also, in accordance with the Civil Code, a unilateral refusal to execute the contract is possible in relation to the supply contract and the contract for the provision of services for compensation. In the first case, the buyer has the right to refuse to fulfill the contract if the supplier delivered the goods of inadequate quality with defects that cannot be eliminated within a period acceptable to the buyer, or repeatedly (that is, more than 1 time) violated the delivery time of the goods. The supplier has the same right if the buyer repeatedly violated the deadline for payment for goods or allowed repeated non-selection of goods. In this case, the contract will be automatically considered terminated from the moment one party receives a notice from the other party about the unilateral refusal to perform the contract, unless another term for termination or amendment of the contract is provided in the notice or is not determined by agreement of the parties 8 .

In the second case, the customer has the right to refuse to fulfill the contract for the provision of services for compensation, subject to payment to the contractor of the expenses actually incurred by him, and the contractor has the right to refuse to fulfill obligations under the contract, subject to full compensation to the customer for losses 9 .

In addition, in relation to the work contract, the Civil Code of the Russian Federation has a rule according to which, unless otherwise provided by the contract, the customer at any time before the delivery of the result of work to him has the right to refuse to perform the contract by paying the contractor a part of the established price in proportion to the part of the work performed before receiving the notice on the customer's refusal to perform the contract, while the customer is also obliged to compensate the contractor for losses caused by the termination of the contract, within the difference between the price determined for the entire work and part of the price paid for the work performed 10 .

Finally, civil law also establishes that if one of the parties to the contract does not have a license to carry out activities or membership in a self-regulatory organization necessary to fulfill an obligation under the contract, the other party has the right to refuse the contract (performance of the contract) and demand compensation for losses 11 .

As for the cases established in “other laws”, as an example, we can cite the situation with the provision of communication services, when the service user violates the requirements of the contract and does not eliminate this violation within 6 months after receiving a written warning from the communication service operator, - in this In this case, the operator has the right to unilaterally terminate the contract 12 .

A complete list of such established cases can be found at the links to Part 1 of Art. 310 of the Civil Code of the Russian Federation in legal reference systems (for example, "Consultant Plus").

Note that these cases also include purchases under 44-FZ, according to which the customer has the right to decide on a unilateral refusal to fulfill the contract on the grounds provided for by the Civil Code of the Russian Federation for unilateral refusal to fulfill certain types of obligations (see above), if provided that it was stipulated by the contract 13 . Moreover, in certain cases, it is even his responsibility - for example, if during the execution of the contract it turns out that the supplier (contractor, performer) and (or) the goods supplied do not comply with the established procurement notice and (or) procurement documentation requirements for procurement participants and (or) the supplied goods or provided false information about its compliance and (or) compliance of the supplied goods with such requirements, which allowed him to become the winner in determining the supplier (contractor, performer) 14 . But if the contract provided for the right of the customer to decide on a unilateral refusal to perform the contract, then a similar right (again, on the grounds provided for by the Civil Code - see above) is provided for by the supplier (contractor, performer) 15 . In this case, if such a decision is made by the customer or supplier (contractor, performer), it enters into force and the contract is considered terminated 10 days from the date of proper notification by one party to the other party of the unilateral refusal to perform the contract; these 10 days are given, relatively speaking, to "correct violations" - if they are corrected, then the party that made the decision must cancel it and the contract will continue to be executed 16 .

Note that this is a purely “additional” norm of 44-FZ regarding the procedure and conditions for unilateral termination of the contract, however, it will no longer work in the event of a repeated violation by the supplier (contractor, performer) of the contract, which became the basis for the unilateral refusal of the customer to fulfill the contract 17 . In addition, it is important to take into account that information about the supplier (contractor, performer), with whom the contract was terminated due to the unilateral refusal of the customer to perform the contract, is included in the register of unscrupulous suppliers (contractors, performers) 18 .

2. If only one of the parties insists on terminating the contract, and the other does not agree with this, in this case the contract can be terminated by a court decision only in case of a material breach of the contract by the other party, as well as in other cases provided for by laws or the contract itself; at the same time, a violation of the contract by one of the parties is recognized as essential, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract 19 .

Based on this rule, the party under the contract cannot terminate the concluded contract only on its own initiative without a corresponding court decision. However, it should be noted that this norm of the Civil Code somewhat contradicts both other norms of the same civil legislation, which establish cases of “out-of-court” unilateral termination of the contract (for example, see the case with unilateral refusal to perform and termination of the supply contract above), and the corresponding norms in other federal laws, including 44-FZ.

In practice, the question often arises, what should be guided by the unilateral refusal to execute and terminate contracts under 44-FZ - the Civil Code of the Russian Federation or 44-FZ?

To answer it, you should carefully read Part 1 of Art. 2 of Law 44-FZ - it states that the rules of law contained in other federal laws and governing procurement, including the specifics of the execution of contracts, must comply with 44-FZ. Therefore, if, according to the Civil Code of the Russian Federation, the contract should be terminated unilaterally through the court, and 44-FZ provides for such termination without going to court, then the norm 44-FZ prevails. But such a conclusion can only apply to parties under agreements concluded under 44-FZ. As for the parties under agreements concluded under 223-FZ, they should adhere exclusively to the norms contained in the Civil Code of the Russian Federation itself (44-FZ no longer applies to their relations).

It turns out that, on the one hand, in accordance with civil law, such a counterparty can unilaterally and without recourse to the court terminate only the supply contract 20 , and in all other cases where it is only a matter of unilateral refusal to perform the contract (for example, when paid services agreement), he can only refuse to fulfill his obligations under this agreement, but to terminate the agreement if it is impossible to do this by agreement of the parties, he will have to go through the court. In principle, it will not be difficult to achieve the necessary court decision if the refusal to fulfill the contract has already occurred in accordance with the cases established by law, but it will still take extra time and other resources.

On the other hand, there is a separate provision in the Civil Code of the Russian Federation, according to which, in the event of a unilateral refusal of the contract (performance of the contract) in whole or in part, if such a refusal is allowed, the contract is considered terminated or amended 21 . Although this rule, again, is somewhat inconsistent with the provision under consideration that, without the consent of one of the parties, the contract can be terminated only by a court decision, it can be relied on in the case when, unilaterally refusing to execute the contract in permitted cases , the refusing party considers that by doing so it terminated the contract at the same time. Courts 22 may also adhere to this position with respect to procurement under 223-FZ.

In addition, we note that the requirement to terminate the contract can be filed by a party to the court only after receiving the refusal of the other party to the proposal to terminate the contract by agreement of the parties or failure to receive a response within the time period specified in the proposal or established by law or the contract, and in its absence - within 30 day time 23 . We also note that in practice the degree of significance of damage is determined by the courts in each specific case.

3. A party to the contract may take the initiative to terminate the contract in the event of a so-called significant change in circumstances - so significant that if the parties could reasonably foresee it, then the contract would not have been concluded by them at all or would have been concluded on significantly different terms 24 .

If in this situation the parties failed to terminate the contract by agreement of the parties, then the decision is made by the court at the request of the initiator of such termination. It should be noted that, in general, judicial practice in relation to this provision of the Civil Code of the Russian Federation concerns the termination of loan agreements, lease agreements, purchase and sale agreements, donation of real estate.

But an example can also be given from the sphere of public procurement 25 . In 2014, the state-owned institution “Department of Private Security of the Main Directorate of the Ministry of Internal Affairs of the Russian Federation for the Irkutsk Region” filed a lawsuit to terminate the state contract with the Interdistrict Inspectorate of the Federal Tax Service No. 19 for the Irkutsk Region, concluded on the last day of 2013. The reason for this appeal was that at the time of the conclusion of the contract, the administrative buildings of the territorial bodies of the tax service were included in the list of objects subject to mandatory protection by the police 26 , but already from 01/01/2014 (that is, from the next day after the conclusion of the contract) they were excluded from this list 27 . In connection with this circumstance, the service provider itself (an institution of private security) offered the customer to terminate the concluded contract, but the customer did not agree.

Probably, this position of the supplier was due to the fact that he was not very financially interested in the execution of this contract and, rather, was forced to conclude it in connection with the obligation to ensure police protection of the buildings of the tax authorities, and when this obligation was canceled, he tried to "get rid of » from the contract. However, the courts of various instances considered that in this case the service provider could have foreseen a “significant change in circumstances” before or at the time of the conclusion of the contract, since the regulatory legal act excluding the buildings of the tax authorities from the list of objects subject to mandatory protection by the police was published on 12.12.2013 on the official Internet portal of legal information www.pravo.gov.ru and on December 16, 2013 in the Collection of Legislation of the Russian Federation No. 50 (Article 6658), that is, 2 weeks before the date of conclusion of the contract. Evidence that the contract was actually concluded earlier than the date of publication of the said normative legal act, the plaintiff could not provide to the courts.

4. If the basis for terminating the contract was a material breach of the contract by one of the parties, the other party has the right to demand compensation for losses caused by the change or termination of the contract 28 .

Compensation for damages can be made in a pre-trial order, however, if this is not possible, then the injured party may apply to the court. Consider example 29 .

In 2014, the Federal State Healthcare Institution "Sanatorium-Dispensary "Solnechny" of the Internal Troops of the Ministry of Internal Affairs of the Russian Federation" signed a state contract with LLC "StroyLider" under the 44-FZ for the performance of major repairs in the amount of 3.5 million rubles . As a result of the execution of the contract, the contractor committed violations of its conditions - did not fully and poorly performed the work provided for by the contract, did not eliminate the identified shortcomings, did not free the work site from construction debris, etc. Based on this, the customer unilaterally refused to perform it, while to confirm violations of the terms of the contract and the grounds for unilateral refusal to execute it, the customer conducted an examination. After that, the customer filed a lawsuit to recover from the contractor compensation for his losses related to the elimination of shortcomings in poor-quality work, costs associated with the fulfillment of his contractual obligations for the contractor (removal of construction waste) and with the examination. As a result of court proceedings, during which an additional forensic examination of violations committed by the contractor was carried out, it was decided to recover in favor of the customer from the contractor the amount of losses in the amount of 1.9 million rubles.

1 Ch. 1 Art. 2 of the Federal Law of 05.04.2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”, part 1 of Art. 2 of the Federal Law of July 18, 2011 No. 223-FZ “On the Procurement of Goods, Works, Services by Certain Types of Legal Entities”.

3 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

4 See Letter No. OG-D28-2482 of February 24, 2015 from the Ministry of Economic Development of the Russian Federation

5 Art. 310 of the Civil Code of the Russian Federation.

6 Ch. 1 Art. 463 of the Civil Code of the Russian Federation.

7 Ch. 3 Art. 627 of the Civil Code of the Russian Federation.

8 Art. 523 of the Civil Code of the Russian Federation.

9 Art. 782 of the Civil Code of the Russian Federation.

10 Art. 717 of the Civil Code of the Russian Federation.

11 Ch. 3 Art. 450.1 of the Civil Code of the Russian Federation.

12 Ch. 3 Art. 44 of the Federal Law of July 7, 2003 No. 126-FZ "On Communications".

13 Ch. 9 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

14 Ch. 15 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

15 Ch. 19 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

16 Art. 13-14, 21-22 st. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

17 Ch. 14 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

18 Ch. 16 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

19 Ch. 2 Art. 450 of the Civil Code of the Russian Federation.

20 In accordance with Part 4 of Art. 523 of the Civil Code of the Russian Federation.

21 Ch. 2 Art. 450.1 of the Civil Code of the Russian Federation.

22 See, for example, Ruling of the Arbitration Court of the Volga-Vyatka District dated June 9, 2016 N F01-1936/2016 in case N A79-9006/2015.

23 Ch. 2 Art. 452 of the Civil Code of the Russian Federation.

24 Art. 451 of the Civil Code of the Russian Federation.

25 Ruling of the Arbitration Court of the East Siberian District dated September 25, 2014 in case N A19-2397/2014.

26 Decree of the Government of the Russian Federation dated 02.11.2009 No. 1629-r “On the list of objects subject to mandatory protection by the police”.

44 Federal Law thoroughly describes all the principles of termination of the contract unilaterally. According to the mutual decision of the Contractor and the Customer, there is no special procedure. Legislators provided for this possibility, but no more. Therefore, both sides should aim at study of the norms of the Civil Code of the Russian Federation to resolve this issue.

The termination procedure can also be written in the contract documentation. However, such a rule is not mandatory, therefore, often the Customer simply does not prescribe such a clause in the contract. However, it is possible to refuse to fulfill obligations under the contract even if the text of the documents does not indicate the procedure for such a procedure.

An agreement on the termination of contractual obligations is drawn up in the same way as the original agreement. It is formed in writing and certified by the signatures and seals of the Contractor and the Customer. If during the period of termination of the contract, the Contractor has already fulfilled a number of its obligations, then it is not entitled to put forward a claim to the other party for the return of funds that were spent on the fulfillment of these same obligations

2. In what situations is it possible to terminate by mutual agreement

Termination of the contract by mutual agreement may occur in such cases as:

1. In the event that the Contractor is not able to fulfill its obligations for unforeseen and beyond its control reasons.

2. The customer no longer needs this purchase.

3. It is not possible to fulfill obligations under the contract due to third-party factors.

4. In the event that the Customer did not select the entire declared scope of work, and the contract has already expired.

5. The Contractor lost the opportunity to fulfill the contract on time, and the Customer decided to withdraw from the contract.

The possibility of termination of contractual obligations by mutual agreement can be carried out only in the presence of sufficiently serious circumstances, this rule is provided for in Article 451 of the Civil Code of Russia. Only such cases are recognized as significant situations, if they were discovered before the conclusion of the transaction, it would not have been signed at all.

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3. Contract termination procedure

Article number 452 of the Civil Code refers to the termination of contractual agreements by mutual agreement between the Contractor and the Customer, as well as the execution of this agreement in writing. Information about this document must be within three days. This procedure is regulated by Article 103 44 of the Federal Law.

The process of terminating agreements in this case is not regulated at all, as we have already written about above, and this process consists of such stages as:

1. The Customer or the Contractor develops a document on the agreement to terminate the contract. It indicates:

Number and date of signing the contract

Reason for termination.

This agreement is drawn up in accordance with the contract itself.

2. After drawing up and signing the document, it is sent to the second party, which must study and sign it.

3. After that, the Customer must enter data on the formation of such an agreement in the register of contracts. Information about the date of termination of the contract must be published. A detailed indication of the reason is not required, it is enough to enter the code “01”.

The contract is considered terminated at the moment when it was signed by the Customer and the Contractor. The date of conclusion of the agreement is indicated in the text.

4. What are the consequences of terminating the contract by mutual agreement

The consequences of termination of contractual obligations are regulated by Article 453 of the Civil Code of the Russian Federation. The result of this procedure is the absence of claims from both parties, and all obligations assumed cease to be valid.

The customer is not entitled to transfer information about the supplier in the event of termination of contractual obligations by mutual agreement. The parties cannot demand the return of already fulfilled obligations.

Order becomes an important issue. It is legally stipulated that it is returned after the supplier has fully fulfilled its obligations. In the event of termination of the contract, the customer sometimes tries to keep the security deposit for himself. At the same time, he is based on the rules of the Civil Code of the Russian Federation and regards the provision of the contract as compensation for losses incurred as a result of the supplier's failure to fulfill obligations. Such behavior of the customer may become a reason for the supplier to go to court and recognize his opponent's actions as unlawful. Therefore, most often after the termination of the contract, customers return the entire amount of the security.

The rupture of contractual obligations is the most preferred option for events. This process cannot lead to negative consequences for any of the parties. In the event that one of the parties has not received consent to terminate the contract by this method, the only option is going to court, but in this case it will be necessary to prove the impossibility of fulfilling obligations under the contract.

5. Sample termination of the contract by agreement of the parties under 44-FZ

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6. Video instruction Changes and termination of the contract

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