Agreement on termination of a state contract by agreement of the parties. How to terminate a contract by agreement of the parties: step by step instructions

In this case, the price of a 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 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, if the contract provided for the customer's right to decide on a unilateral refusal to fulfill the contract. (as amended by Federal Law of December 28, 2013 N 396-FZ) (see the text in the previous edition) 20.

Termination of the contract by agreement of the parties (part 8 of Art. 95 FZ No. 44)

Clause 6 Article 709 of the Civil Code of the Russian Federation Customers may also have a reason for unilateral cancellation of the contract № Reason What is regulated by 1 Supply of goods / provision of services / performance of work of inadequate quality. This fact must be recorded by independent experts. Clause 2, Article 523 of the Civil Code of the Russian Federation 2 Delivery of goods in incomplete configuration in the event that the supplier refuses to correct his mistake.
Clause 2, Article 480 of the Civil Code of the Russian Federation 3 Violation of the delivery time, recorded at least two times. Clause 2 of Article 523 of the Civil Code of the Russian Federation 4 The contractor / performer, for unknown reasons, does not start performing work / rendering services on time or violates the schedule. Clauses 2, 3, Article 715 of the Civil Code of the Russian Federation 5 Non-elimination of deficiencies identified during the execution of the contract or the impossibility of eliminating them due to materiality.

Termination of a contract by agreement of the parties before its expiration

The procedure for conducting public procurement in the Russian Federation is regulated by 44-FZ. Art. 95 of this normative act determines the grounds and rules for changing and terminating the contract concluded based on the results of the bidding. Let us consider further some provisions of the article. General information Termination of a contract is allowed on the basis of a court decision, by agreement of the parties to the transaction, as well as in the event of a unilateral refusal of one of the subjects to execute it.

In this case, the parties must be guided by the norms of the Civil Code. Unilateral termination of the contract As stipulated in Article 95 of Federal Law No. 44, the customer can unilaterally refuse to execute the contract on the grounds provided for in the Civil Code, if the corresponding possibility is enshrined in the contract itself. To make an appropriate decision, he has the right to involve specialists to conduct an examination of the work performed, the products supplied or the service provided.

Article 95. amendment, termination of the contract

Changing the essential terms of the contract during its execution is not allowed, except for their change by agreement of the parties in the following cases: 1) if the possibility of changing the terms of the contract was provided for by the procurement documentation and the contract, and in the case of procurement from a single supplier (contractor, performer) by the contract : a) when the price of the contract is reduced without changing the amount of goods provided for by the contract, the amount of work or service, the quality of the supplied goods, the work performed, the service provided and other terms of the contract; b) if, at the suggestion of the customer, the amount of goods provided for by the contract, the amount of work or service is increased by no more than ten percent, or the amount of the supplied goods, the amount of work performed or the service provided, is reduced by no more than ten percent.

Termination of the contract by agreement of the parties 44-fz

In the event of the occurrence of circumstances that are provided for in paragraph 6 of part 1 of this article and make it impossible for the state or municipal customer to fulfill 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, means for the provision of ambulance, including emergency specialized, medical care in an emergency or urgent form, medicines, fuel), and (or) for which the supplier (contractor, performer) has fulfilled the obligations. five.
The full name of the state (municipal) customer) represented by (the position of the head, full name), acting on the basis of (indicate the document certifying authority), hereinafter referred to as the "Customer", on the one hand and (full name of the organization) in a person (position of the head, full name) acting on the basis of (indicate a document certifying authority), hereinafter referred to as the "Supplier" ("Contractor" or "Executor"), collectively referred to as the "Parties", have entered into this agreement on as follows: 1.
Based on Part 8 of Art. 95 of the Federal Law of 05.04.2013 "On the contract system in the procurement of goods, works, services to meet state and municipal needs" (hereinafter - Federal Law No. 44) and Part 1 of Art. 450 of the Civil Code of the Russian Federation, the parties agreed to terminate the contract No. from "" 20

Ap 44 termination of the contract after the expiration of the contract

The Civil Code of the Russian Federation established that a change in circumstances is recognized as significant when they have changed so much that, if the parties could reasonably foresee this, the contract would not have been concluded by them at all or would have been concluded on significantly different conditions. In practice, there are several situations where the parties by agreement can terminate the contract. So, mutual termination of the contract is possible, firstly, if the supplier cannot fulfill his obligations under the contract for reasons beyond his control (for example, the contract has expired, and the customer has not chosen all the goods, respectively, the supplier has not delivered all the goods). Secondly, when there was no longer the need to supply the goods from the customer. Thirdly, when the contract cannot be executed due to force majeure circumstances.

FZ 44 termination of the contract after the expiration of the contract

If the parties do not intend to continue cooperation, then until the termination, they must "pay" for partially fulfilled obligations. For example, if the supplier has often handed over the goods to the customer and he accepted it, then payment must be made in proportion to the obligations fulfilled. The same applies to the work performed / services rendered.
In the event that the supplier does not fulfill the obligations under the contract in a quality manner and the customer has carried out the appropriate examination, then in order to continue cooperation, he must not only give an obligation to correct and deliver a quality product / provide a service / perform the work as provided for by the contract, but also compensate for the costs of the performed expertise.
Federal Law No. 44 states that the contract can be terminated unilaterally only if the contract provided for such an opportunity. As for the termination of the contract by agreement of the parties, Federal Law No. 44 does not establish the requirement for the need to reflect such a possibility in the contract. According to Part 1 of Art. 450 of the Civil Code of the Russian Federation, changes and termination of the contract are possible by agreement of the parties, unless otherwise provided by this code, other laws or the contract.
Thus, even if the contract does not provide for the possibility of terminating the contract by agreement of the parties, such a right exists by default, by virtue of the law. Also, article 451 of the Civil Code of the Russian Federation determines the possibility of changing and terminating the contract in connection with a significant change in circumstances. In paragraph 1 of Art.
Protocol (fill in the required) No. (value) from (day, month, year)). 2. Mutual settlements between the Parties under contract No. from "" 20 were made in full. At the time of the conclusion of this agreement, the Supplier delivered goods (services rendered, work performed) in the amount of () rubles kopecks.

For the goods supplied (services rendered, work performed), the Customer has paid in full in the amount of () rubles kopecks. The parties have no claims to each other. If the goods (services, works) are not delivered (provided, performed) in full, it is possible to specify the following: The supplier has the right to demand payment in full for the actual amount of the delivered goods (services provided, work performed), and the Customer is obliged to accept and pay the actual quantity of goods delivered (services rendered, work performed).

Important

Federal Law of 28.12.2013 N 396-FZ) 1.1. Abolished on January 1, 2017. - Federal Law of December 29, 2015 N 390-FZ. (see the text in the previous edition) 2. In the cases specified in clause 6 of part 1 of this article, the reduction in the quantity of goods, the volume of work or services in the event of a decrease in 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 decision by the state or municipal customer to change the contract in connection with a decrease in the limits of budgetary obligations is carried out based on the proportionality of the change in the price of the contract and the amount of goods, volume of work or service.

If the work is not completed, the contract continues to operate (Letter of the Ministry of Economic Development of the Russian Federation of August 16, 2016 No. D28i-2101). Therefore, the contract is terminated according to the general procedure.

If there are grounds for unilateral termination, then a notice drawn up in any form must be sent. If there are no grounds, then you need to go to court.

The rationale for this position is given below in the materials of the "System of State Finance" .

“A contract that you have already concluded can be terminated:

• by agreement of the parties;
• by the tribunal's decision;
• in case of unilateral refusal to perform the contract.

This is stated in article 450 of the Civil Code of the Russian Federation, part 8 of article 95 of the Law of April 5, 2013 No. 44-FZ.

When the contract is terminated, all obligations between the parties terminate. The contract cannot be partially terminated. For example, to refuse one product or type of work. Law No. 44-FZ does not provide for such a possibility. This is stated in the letters of the Ministry of Economic Development of Russia dated January 16, 2017 No. D28i-130, dated March 29, 2016 No. D28i-923.

To cancel part of the obligations, use one of the following methods:

1. amend the contract, if your case is on a closed list, when possible;
2. terminate the contract after you have fulfilled part of the obligations.

The procedure and conditions for termination should be clearly stated in the contract. This will help avoid lengthy lawsuits. For example, like this:

Do not forgetthat if you terminate the contract by a court decision or unilaterally, information about the counterparty must be sent to the register of unscrupulous suppliers (hereinafter - RNP).

Let us dwell on each of the above cases of termination of the contract in more detail.

Agreement of the parties

It is possible to terminate the contract by agreement of the parties if both the customer and the supplier (contractor, performer) agree to this (clause 1 of article 450 of the Civil Code of the Russian Federation). The reasons can be, for example:

• underfunding of the customer and, as a result, his inability to pay for the goods;
• the inability of the counterparty to fulfill the contract on time;
• the customer has lost the need for a product (work, service), which at the end of the contract has not yet been delivered (letter of the Ministry of Economic Development of Russia dated December 1, 2015 No. D28i-3552).

However, the reason due to which the parties decided to terminate the contract, as a rule, does not matter (see, for example, resolution of the Federal Antimonopoly Service of the North Caucasus District of March 11, 2009 No. A63-3745 / 2008-C2-26).

Important! In 2016, due to underfunding, it will not be possible to terminate contracts that are due in 2017. This prohibition applies only to recipients of funds from the federal budget and the budget of the state extra-budgetary fund (subparagraph 1, part 2, article 5 of the Law of September 30, 2015 No. 273-FZ).

Advice: It is better for the customer not to abuse the termination of contracts without objective necessity. This is due to the fact that in the framework of public procurement, control over the execution of contracts is strict. And if the customer often terminates contracts for no reason (even if by agreement of the parties), this can be regarded by the inspectors as attempts to conclude a contract with "their" supplier, and will be recognized as a violation.

Termination of the contract by mutual agreement is the most painless way for the parties, since:

• the customer does not enter information about the supplier in the register of unscrupulous suppliers (part 2 of article 104 of the Law of April 5, 2013 No. 44-FZ);
• in the future, the parties will not have the right to file a claim for damages to the court, challenge the unjustified termination of the contract (see, for example, the resolution of the Thirteenth Arbitration Court of Appeal dated September 30, 2008 No. A56-3868 / 2008).

Procedure for termination by agreement

If you want to terminate the contract by agreement of the parties, proceed as follows.

1. First of all, notify the counterparty about this. To do this, send him a proposal for termination in writing (for example, by registered or registered letter). In the future, this may come in handy if the counterparty refuses to terminate the contract or does not respond to the offer at all. In this case, to terminate the contract, the customer will be able to go to court (clause 2 of article 452 of the Civil Code of the Russian Federation).

2. If the counterparty agrees to terminate the contract, draw up an agreement on this (clause 1 of article 452 of the Civil Code of the Russian Federation). In it, write down the procedure for the actions of the parties related to the termination of the fulfillment of obligations under the contract. In particular, it is worth including in the agreement information:

• the moment of termination of obligations. This is necessary in order for the contract to be terminated from a certain date. If the condition is not established, then the date of signing the agreement will be considered the moment of termination of the contract (clause 3 of article 453 of the Civil Code of the Russian Federation);
• actions of the parties for the goods supplied by the counterparty (work performed, service performed) and payment made by the customer before termination. As a general rule, the parties are not entitled to demand the return of what was performed under the contract prior to its termination (clause 4 of article 453 of the Civil Code of the Russian Federation). Therefore, when drafting agreements, assess whether it is beneficial to include these provisions. So, you can agree on a return if the goods were delivered of poor quality, the counterparty recognizes this and agrees to pick it up and return the money.

The supplier may not sign the termination agreement. But at the same time, by its actions, it will begin to fulfill the conditions specified in it (for example, return payment to the account, terminate the provision of services, etc.). In this case, the court may recognize the contract as terminated by agreement of the parties on the basis of paragraph 3 of Article 438 of the Civil Code of the Russian Federation. This position is confirmed by judicial practice, for example, the resolution of the Fifth Arbitration Court of Appeal dated October 14, 2013 No. 05AP-9458/2013 in case No. A24-768 / 2013, FAS of the Ural District dated July 27, 2006 No. F09-6540 / 06-C3 in case No. A60 -25459 / 05-C4.

If the counterparty still does not sign the termination agreement and will continue to fulfill the obligations under the contract, then you can go to court or terminate the contract unilaterally, if there are objective reasons for this.

Unilateral refusal

The customer can terminate the contract unilaterally, only if this possibility is provided for by the terms of the contract. These grounds are provided for in Part 2 of the Civil Code of the Russian Federation for unilateral refusal to fulfill certain types of obligations: the supply of goods, the performance of work, the provision of services. This is stated in parts 8, 9 of Article 95 of the Law of April 5, 2013 No. 44-FZ.

The term within which the customer must terminate the contract is not established by law. Therefore, in addition to other conditions, it is advisable to prescribe it in the contract. For example, as follows: “The customer has the right to terminate the contract unilaterally if the Supplier violates the delivery time of the goods more than two times and if such violation entails damage to the Customer. The contract is terminated within 5 calendar days from the date of violation of the delivery time for the third time. "

When supplying goods, the reasons for the termination of the contract unilaterally may be significant violations (clause 2 of article 523 of the Civil Code of the Russian Federation):

• repeated violation of delivery times;
• supplies of inadequate quality that cannot be eliminated within an acceptable time frame.
• if the contractor did not start the execution of the contract in a timely manner or during the execution it is obvious that it is clearly impossible to complete the work on time (clause 2 of article 715 of the Civil Code of the Russian Federation);
• if the contractor performed the work poorly and did not correct the defects that were admitted within the time period set by the customer (clause 3 of article 715 of the Civil Code of the Russian Federation, resolution of the Federal Antimonopoly Service of the Ural District of August 1, 2014 No. F09-4638 / 1). It is worth noting that in this case, the customer has the right to entrust the correction of the work to another person at the expense of the contractor or to demand compensation from the contractor for damages;
• non-compliance of goods (works, services) with the provisions of the procurement documentation. For example, the court recognized the following reason for unilateral termination as justified: the supplier violated the terms of the documentation on the production time of the goods. Namely, in the terms of reference it was said that the goods must be manufactured in the IV quarter of 2014, and the goods manufactured earlier were delivered (ruling of the Supreme Court of the Russian Federation of September 25, 2015 No. 309-ES15-12018).

When providing services, the basis for unilateral refusal to fulfill the contract does not matter (Article 782 of the Civil Code of the Russian Federation, Resolution of the FAS of the Volgo-Vyatka District of January 9, 2014 No. A38-1729 / 2013, the Far Eastern District of January 31, 2014 No. F03-6841 / 2013) ... However, it is not worth abusing unilateral termination in any case, as this can be regarded by the reviewers as a violation. In fact, refusal to execute a contract for the provision of services is also possible only if one of the parties to the contract is in bad faith.

It is important to note that unilateral refusal does not cancel the obligation of the supplier (performer, contractor) to pay the customer a penalty for breach of obligations. The violator needs to charge a forfeit before the date of termination of the contract (that is, when the obligations have terminated). This is stated in paragraphs 3, 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 6, 2014 No. 35.

Attention: If the contract provides for the possibility of the customer refusing to fulfill his obligations unilaterally, then the supplier (contractor, performer) is granted the same right (part 19 of article 95 of the Law of April 5, 2013 No. 44-FZ). At the same time, if the supplier exercises his right and refuses to execute the contract, information about him is not included in the register of unscrupulous suppliers (letter of the Ministry of Economic Development of Russia dated August 18, 2015 No. D28i-2500).

The procedure for terminating the contract by the supplier (contractor, performer) is identical to the procedure for the customer.

First, like the customer, the supplier must have good reason for unilateral refusal. For example, an increase in the exchange rate is not recognized as such a basis. If the supplier does not want to fulfill the contract for this reason, the customer can go to court. And, most likely, the court will be on his side. For example, as it was in the decisions of the Eighth Arbitration Court of Appeal dated October 15, 2015 No. 08AP-8773/2015, dated July 24, 2015 No. 08AP-6215/2015. By the way, in the October ruling, the judges explained why the rise in the exchange rate in itself is not considered a weighty (force majeure) circumstance. The fact is that when concluding a contract for the supply of foreign goods, the supplier must take into account additional factors, such as:
- lack of sufficient quantity of the required goods in the warehouse;
- possible absence on the market of the goods necessary for the execution of the contract at a price that satisfies the supplier;
- the lack of a preliminary supply agreement with partners at fixed (ruble), not foreign exchange prices, etc.

Secondly, the supplier is obliged to cancel the unilateral waiver decision, which has not yet entered into force, if the customer eliminates the breach of the contract. Moreover, violations must be eliminated within ten days from the date of proper notification of the customer of the decision (part 22 of article 95 of the Law of April 5, 2013 No. 44-FZ).

Important: the supplier does not post information about his decision to unilaterally refuse to execute the contract in the Unified Information System (hereinafter - EIS). Therefore, it is necessary to notify the customer about unilateral termination in other ways. The main thing is that the chosen method will make it possible to record that the customer has received a notification.

If the right to unilateral termination is not established in the contract, then terminate the contract either by agreement of the parties, or through the court. However, in some cases, the customer is obliged to terminate the contract unilaterally, even if this condition was not spelled out. This should be done if during the execution of the contract it was revealed that the counterparty did not meet the requirements established by the procurement documentation (notification of the request for quotations - if such a procurement procedure was carried out), or provided inaccurate information (part 15 of article 95 of the Law of April 5 2013 No. 44-FZ). The legislation does not establish specific time frames for termination of the contract in this case. But in order to avoid the risk of not getting the goods (service, work) you need or the risk of losing time, it is advisable to start terminating the contract immediately after identifying inconsistencies. Namely, send a notice of termination to the supplier and publish the decision on this in the EIS.

Note! It is possible that at the time of submitting the application, the procurement participant met the established requirements, that is, provided reliable information. And only when he applied, he stopped complying with them. Namely, due to the fact that information about him was included in the RNP. In this case, you do not need to terminate the contract or refuse to conclude it. This opinion is confirmed by the FAS Russia in paragraph 1 of the letter dated March 16, 2017 No. IA / 16790/17, in the letter dated August 6, 2015 No. АЦ / 40483/15.

Procedure for unilateral refusal

In case of a unilateral refusal to perform a contract, you do not need to go to court or obtain the consent of the other party. This follows from parts 13 and 21 of Article 95 of the Law of April 5, 2013 No. 44-FZ. Therefore, before terminating the contract unilaterally, assess all the possible consequences (as an option, the contractor may apply to the court to declare such a decision illegal).

To terminate the contract, proceed as follows.

1. For the refusal to be justified, it is advisable to conduct an examination. And if experts confirm violations of the terms of the contract, the customer will be able to confidently refuse to fulfill the contract unilaterally. This conclusion follows from parts 10, 11 of Article 95 of the Law of April 5, 2013 No. 44-FZ. In the event that the counterparty sues, then you will have an additional argument in the form of an expert opinion.

It is important to know that carrying out an examination in the event of a unilateral refusal to perform a contract is the right of the customer, not his obligation. This follows from part 10 of Article 95 of the Law of April 5, 2013 No. 44-FZ. There is no need to involve experts if the unfair performance of the contract is obvious and does not require expert confirmation. For example, if the contract has expired, and the contractor has not even started work. If, however, the basis for unilateral refusal to fulfill the contract are problems with the quality of the supplied goods and special laboratory tests are required to prove this, then an examination is advisable. This point of view is confirmed by arbitration practice (see, for example, the resolution of the FAS of the Ural District of August 1, 2014 No. F09-4638 / 1).

If the customer nevertheless decides to conduct an examination, the following must be taken into account:

• attracted experts, expert organizations must comply with the requirements of independence from the customer and supplier (Article 41 of the Law of April 5, 2013 No. 44-FZ);
• unilateral refusal is possible only if the experts confirm the violations that served as the basis for the customer's unilateral refusal to fulfill the contract (part 11 of article 95 of the Law of April 5, 2013 No. 44-FZ).

2. Send to the counterparty about the termination within three working days from the date of the decision on this. In such a notification, indicate your full or partial refusal to fulfill the contract and the reasons for refusal (clause 4 of article 523 of the Civil Code of the Russian Federation). You must send a notification in at least two ways at the same time.

Be sure to send the notice by registered mail with return receipt requested to the address specified in the contract. And additionally - in one or more of the following ways:

• by telegram;
• by fax;
• by email;
• by another means of communication and delivery, which will ensure that the notification is recorded and the customer receives confirmation of its delivery to the supplier (contractor, performer).

3. Publish the decision on unilateral refusal to terminate the contract in the EIS. This must be done within three working days from the date of the decision on this (i.e., simultaneously with the notification to the counterparty).

The decision to refuse to execute the contract will take effect and the contract will be considered terminated 10 days after the date of proper notification of the supplier (contractor, executor). In this case, the date of the proper notification is the date of receipt by the customer:

• confirmation of delivery of the notification to the supplier (contractor, performer);
• information about the absence of the supplier (contractor, performer) at his address specified in the contract.

The shipping method used does not provide confirmation or information? In this case, the date of notification will be the date after 30 days from the date of the posting of the decision to refuse in the EIS.

This is stated in parts 12, 13 of Article 95 of the Law of April 5, 2013 No. 44-FZ and explained in the letter of the Ministry of Economic Development of Russia dated April 9, 2015 No. D28i-950.

Attention: If, within the established ten-day period, violations of the terms of the contract are eliminated, the customer is obliged to cancel the decision on unilateral refusal.

To do this, it is necessary to set a period for the entry into force of the decision on refusal, during which the supplier (contractor, performer) fulfills certain conditions, for example:

• within the specified period, eliminated violations of the terms of the contract, which served as the basis for this decision;
• compensated the customer's expenses for the examination.

If you violate the terms of the contract again, do not apply this rule.

Judicial order

When terminating a contract by a court decision, apply the procedure established by civil law (part 8 of article 95 of the Law of April 5, 2013 No. 44-FZ). In this case, we recommend that you proceed as follows.

1. Before starting legal proceedings, contact the counterparty directly to resolve the dispute. This can be done by inviting the supplier to change the terms of the contract or terminate it. To do this, send a proposal for a settlement. It should be borne in mind that you cannot arbitrarily change the terms of the contract. Part 1 of Article 95 of Law No. 44-FZ provides an exhaustive list of cases in which changes may be made to the contract. During the pre-trial settlement, the customer may propose to the supplier to change the terms of the contract by agreement of the parties only in these cases.
Important: if you terminated the contract under an amicable agreement or for other circumstances not related to violation of the terms of the contract, do not include information about the counterparty in the register of unscrupulous suppliers (clause 2 of the letter of the FAS Russia dated March 16, 2017 No. ИА / 16790/17).

2. And only if the counterparty refuses the offer or does not respond to it within the time period set in the offer, law or agreement (if no such time period is set - within 30 days), file a claim with the court. This procedure follows from paragraph 2 of Article 452 of the Civil Code of the Russian Federation.

The procedure for filing and considering a complaint in court is established by the Arbitration Procedure Code of the Russian Federation. Before filing a statement of claim and considering the case in the Arbitration Court, you must pay the state fee. The size of the state duty for consideration of the case on termination of the contract is 4,000 rubles. (subparagraph 2, clause 1 of article 333.21 of the Tax Code of the Russian Federation).

For more details on the transfer of state fees, see here.

Make a statement of claim in writing (part 1 of article 125 of the APC RF).

In the statement of claim, indicate:

• claims against the counterparty (for example, for damages, legal costs);
• the reasons on which the claims are based;
• evidence that supports these reasons.

A complete list of information that must be indicated in the claim is given in part 2 of article 125 of the Arbitration Procedure Code of the Russian Federation, and the documents that should be attached to the claim are given in article 126 of the said code.

In court, the contract can be terminated on the following grounds.

1. Supplier (contractor, performer) of the terms of the contract (clause 2 of Art. 450 of the Civil Code of the Russian Federation). In particular, a violation can be considered significant when the goods are delivered of inadequate quality, with defects that cannot be eliminated within an acceptable time frame for the customer. Or if violations are identified repeatedly and reappear after elimination.

Also, the parties can indicate in the contract those violations that will be significant for them (clause 4 of article 421 of the Civil Code of the Russian Federation). For example, the delay in the performance of work by a supplier (contractor, performer). This conclusion is confirmed by the decisions of the Federal Antimonopoly Service of the West Siberian District of January 14, 2009 No. F04-8111 / 2008 (18677-A45-50), of the Ural District of January 14, 2009 No. F09-10140 / 08-S4.

note: if the contract is terminated by a court decision in connection with a significant violation of the terms of the contract, then this does not exempt the supplier (performer, contractor) from paying the customer a penalty for violation of obligations. The violator needs to charge a forfeit before the date of termination of the contract (that is, when the obligations have terminated). This is stated in paragraphs 3, 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 6, 2014 No. 35.

2., from which the parties proceeded when concluding the contract (Article 451 of the Civil Code of the Russian Federation). In this case, it is advisable to bring the terms of the contract in accordance with the new circumstances or terminate it before going to court (clause 2 of article 451 of the Civil Code of the Russian Federation). If you do not agree with the counterparty about new conditions or termination, then you can go to court. The court will terminate the contract if it is proven that:

• at the time of the conclusion of the contract, the parties proceeded from the fact that such a change in circumstances would not occur;
• the change in circumstances was caused by reasons that the interested party could not overcome after their occurrence with the degree of care and discretion that was required of it by the nature of the contract and the terms of the turnover. In other words, making every possible effort to overcome the circumstances that have arisen;
• it does not follow from the customs or the nature of the contract that the risk of a change in circumstances is borne by the interested party.

As a rule, courts are reluctant to terminate a contract due to a significant change in circumstances and usually cite a lack of evidence.

Situation: which cases relate to a material change in circumstances upon termination of the contract

There is no unequivocal answer to this question in the legislation.

The Civil Code says that a significant change in circumstances is such a change in circumstances when they have changed so much that if the parties could reasonably foresee this, the contract would not have been concluded by them at all or would have been concluded on significantly different conditions (paragraph 2, paragraph 1 Article 451 of the Civil Code of the Russian Federation). However, the specific types of such circumstances have not been established.

The courts, when considering cases in each specific case, may come to opposite opinions. But, at the same time, as a rule, it is recognized as a significant change in circumstances:

• bankruptcy;
• changes in the financial position of the customer or contractor;
• natural disasters and other incidents.

3. Other cases stipulated by civil law, other regulations, the contract itself (subparagraph 2 of paragraph 2 of article 450 of the Civil Code of the Russian Federation).

Important! If the contract is terminated by the court, enter the information about the counterparty in the register of unscrupulous suppliers. Do this always, regardless of the reason why the court terminated the contract (part 2 of article 104 of the Law of April 5, 2013 No. 44-FZ, letter of the Ministry of Economic Development of Russia dated November 5, 2015 No. D28i-3324).

Compensation for damage incurred upon termination of the contract

In case of early termination of the contract, in some cases, the customer will have to reimburse the counterparty's expenses for the execution of the contract. This must be done, in particular:

• upon termination of the contract by agreement of the parties, if such a condition is established by the concluded agreement;
• if the customer unilaterally refuses to execute the contract. At the same time, the counterparty may demand to compensate only the actual damage incurred, which is directly caused by the termination of the contract (part 23 of article 95 of the Law of April 5, 2013 No. 44-FZ, letter of the Ministry of Economic Development of Russia dated January 22, 2015 No. D28i-109). For example, the contract is terminated:
  - to perform work. This means that part of the cost of the contract will have to be reimbursed, proportional to the amount of work that was completed before the termination (Article 717 of the Civil Code of the Russian Federation);
  - for the provision of services. In this case, the customer must reimburse the contractor for the actual costs incurred by him (Article 782 of the Civil Code of the Russian Federation);
• upon termination of the contract for the supply of goods on one of the grounds, the customer must return the property, and if he used it, compensate for its absence or deterioration in monetary form (clause 6.2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 6, 2014 No. 35).

In addition, the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 6, 2014 No. 35 explains what losses are subject to compensation and how customers should act in other cases of termination of the contract.

Attention: A party to a contract that has violated its obligations cannot claim damages from the other party (Article 524 of the Civil Code of the Russian Federation). This position is also supported by judicial practice (see, for example, the resolution of the Federal Antimonopoly Service of the Urals District dated March 15, 2007 No. F09-2900 / 06-C5).

Refund of advance payment (prepayment) upon termination

If the contract is terminated on one of the grounds, the supplier must return the amount of the unused advance to the customer. This must be done within a reasonable time frame. The concept of "reasonable time" is not disclosed in the legislation, therefore the parties to the contract can determine it independently and prescribe it in the terms of the contract. If, within this period, the supplier has not returned the advance payment, then send him a demand to fulfill the obligation. After that, the supplier must return the money within 7 calendar days from the date of delivery of the request. This is stated in part 2 of article 314 of the Civil Code of the Russian Federation.

If the supplier still does not return the advance, then it can be withheld from the amount of contract enforcement, but only if such an opportunity is provided for by the contract (joint letter dated December 25, 2014 of the Ministry of Finance of Russia No. 02-02-04 / 67438 and the Treasury of Russia No. 42-7.4 -05 / 5.1-805). If this is not spelled out, then go to court.

In addition to the amount of the advance payment, the customer may also collect a penalty for his late return or for refusal to return. How to do it? Write down this condition in the contract right away. And when there is a delay, then expose a forfeit to the supplier. If there is no such condition in the contract, charge the supplier with interest for the use of other people's funds. For the calculation, use paragraph 1 of Article 395 of the Civil Code of the Russian Federation. Please note that it is impossible to collect interest from the supplier twice: both under the contract and under the Civil Code of the Russian Federation. Such clarifications are given by the Ministry of Finance of Russia in a letter dated May 5, 2016 No. 02-02-15 / 26016.

Attention: Make sure the counterparty has received the request to return the advance. After all, it is the very fact of receiving such a requirement that matters, and not sending it by the customer. Therefore, please send it by registered mail with acknowledgment of receipt to the address specified in the contract and to other known addresses.

If the supplier incurred any expenses related to the provision of services, then the advance payment minus the amount of these expenses is subject to refund (see, for example, the resolution of the Federal Antimonopoly Service of the North Caucasus District of January 28, 2011 in case No. A53-22853 / 2009; determination of the Supreme Arbitration Court of the Russian Federation No. VAS-3934/11 of April 14, 2011 refused to be transferred to the Presidium of the Supreme Arbitration Court of the Russian Federation for revision by way of supervision).

Posting information about termination

After the contract is officially terminated, publish information about this in the EIS. This must be done within one working day after the date of termination. Do not post only information that constitutes a state secret.

Then during three working days submit termination information to the register of contracts.

Register of unscrupulous suppliers

If you terminate the contract by court order or unilaterally, send information about the counterparty to the register of unscrupulous suppliers (hereinafter - RNP). This must be done within three working days from the date of termination of the contract (parts 2, 6 of article 104 of the Law of April 5, 2013 No. 44-FZ).

For this, the contract service employee (contract manager) sends the list of documents to the FAS Russia. Moreover, even if you terminate the contract, which was concluded within the framework of the state defense order (clause 5.3.4 of the Regulations approved by the decree of the Government of the Russian Federation of June 30, 2004 No. 331).

So, in order to include a supplier (performer, contractor) in the RNP, send the following documents to the FAS Russia:

• information about the supplier specified in part 3 of article 104 of the Law of April 5, 2013 No. 44-FZ, in particular: name, location, subject, contract price, deadline, etc .;
• a copy of the court's decision to terminate the contract or the customer's decision to unilaterally refuse to perform the contract.

A complete list of information and the procedure for their submission is determined by parts 3, 6 of article 104 of the Law of April 5, 2013 No. 44-FZ and paragraph 8 of the Rules, approved by the Government of the Russian Federation of November 25, 2013 No. 1062.

Within ten working days, the control body will check the submitted documents and make a decision. If the supplier is found to be in bad faith, information about him will be published in the register three business days after the decision on this is made. This procedure is established in part 7 of article 104 of the Law of April 5, 2013 No. 44-FZ, paragraphs 10-13 of the Rules, approved by the decree of the Government of the Russian Federation of November 25, 2013 No. 1062.

Is it possible to revoke information about a participant that you have already submitted for its inclusion in the RNP? No you can not. This is not provided for by the Regulations for maintaining the register (letter from the Ministry of Economic Development of Russia dated February 6, 2015 No. D28i-277). But if you mistakenly submitted information, then at a meeting of the FAS Russia commission on the inclusion of a supplier in the RNP, you can declare this, and then, most likely, the supplier will not be included in the RNP.

Important: even if information about the supplier is included in the RNP, this is not a reason to terminate the contracts previously concluded with him. Of course, if there is no other reason for this. This is stated in the letters of the FAS Russia dated August 6, 2015 No. АЦ / 40483/15, the Ministry of Economic Development of Russia dated February 18, 2015 No. D28i-387.

Situation: is it possible to terminate the contract without including the contractor in the register of unscrupulous suppliers

Yes, you can, but only if the contract is terminated by agreement of the parties. The rest of the cases of termination of the contract, which are determined by part 8 of Article 95 of the Law of April 5, 2013 No. 44-FZ, do not provide such an opportunity.

Information about the supplier (contractor, executor) with whom the contract was terminated is entered in the register of unscrupulous suppliers in the following cases.

1. When the supplier (contractor, performer) avoids concluding a contract (part 2 of article 104 of the Law of April 5, 2013 No. 44-FZ). In this case, the basis for the inclusion of the counterparty in the register of unscrupulous suppliers will be, in particular, those submitted by the customer:

• information about the supplier (performer, contractor) specified in clauses 1-3 of part 3 of article 104 of the Law of April 5, 2013 No. 44-FZ;
• an extract from the protocol of consideration and evaluation of applications for participation in the procurement or from the protocol on the results of the procurement;
• other documents that indicate the refusal of the supplier (contractor, performer) to conclude a contract (if any).

This is stated in clauses 6-7 of the Rules approved by the Government of the Russian Federation of November 25, 2013 No. 1062. The complete list of documents that the customer must submit is determined by parts 4-5 of Article 104 of the Law of April 5, 2013 No. 44-FZ.

2. By a court decision or in the event of a unilateral refusal by the customer to perform the contract, provided that the supplier (contractor, executor) violates the terms of the contract. The basis for the inclusion of a supplier (contractor, performer) in the register of unscrupulous suppliers will be the documents specified in part 6 of article 104 of the Law of April 5, 2013 No. 44-FZ, namely:

• information about the supplier (contractor, executor) specified in part 3 of article 104 of the Law of April 5, 2013 No. 44-FZ (name, location, subject, price of the contract, deadline for its execution, etc.);
• a copy of the court's decision to terminate the contract or the customer's decision to unilaterally refuse to perform the contract.

This procedure is determined by clause 8 of the Rules, approved by the Decree of the Government of the Russian Federation of November 25, 2013 No. 1062.

Thus, if you do not want the supplier to be included in the register of unscrupulous suppliers, then terminate the contract with him by agreement of the parties (without a trial). To do this, simply sign an additional agreement. Otherwise, inclusion in the register cannot be avoided. "

Law No. 44-FZ allows you to terminate a contract earlier than the term specified in it. The initiative can come from both the customer and the supplier. How to conclude an agreement on termination of a contract, as well as provide a sample agreement on termination of a contract by agreement of the parties under 44-FZ.

How to terminate a contract

There are three ways to terminate a contract:

• by agreement of the parties;
• by the tribunal's decision;
• in case of unilateral refusal.

The first method provides that the parties made a joint decision to terminate the contract under 44-FZ. This right is given to customers and suppliers by Art. 95 of the Law on the Contract System. In this case, the rules of action are not specified. Therefore, it is necessary to be guided by Ch. 29 of the Civil Code of the Russian Federation. It talks about the essence of this method of termination of the contract, the procedure for the procedure and its consequences.

As a rule, contracts are terminated by mutual agreement of the parties, when external circumstances in the course of its execution have changed so much that further cooperation is unprofitable to anyone. Termination by court is also possible in case of unilateral refusal of the customer or supplier. The latter option is possible if the other side. This means that for the second party its damage exceeded the expected benefit.

How to conclude a termination agreement in stages

Consider the four steps that you need to go through in order to conclude an agreement on termination of the contract in accordance with all the rules and not fall under the sanctions of the FAS.

At the first stage it is necessary to determine the reason for the termination of the contract by mutual agreement. The law does not contain a specific list of grounds for this. However, in practice, contracts are terminated for the following reasons:

• the need for procurement has disappeared (for example, after the reduction of the staff of an entire department of a state institution, it no longer needed advanced training services for these employees);
• the supplier cannot fulfill the terms of the contract for reasons beyond his control (this includes force majeure, the occurrence of which the company did not foresee, for example, natural disasters, strikes, etc.).

However, if the supplier has materially violated the terms of the contract or has not fulfilled its obligations at all, the customer is not entitled to use the termination method by agreement of the parties. An example is the repeated failure of delivery times, multiple defects in the goods, etc. Even if the state customer does not want to spoil the supplier's reputation and agrees to terminate the contract by mutual agreement, he has no right to do so. The procedure can be carried out through the court or unilaterally. The consequence will be the inclusion of the supplier in the register of bad faith (as opposed to a mutual decision).

When the supplier violates the essential conditions, you terminate the contract with him unilaterally and submit information to the RNP. Please note that once you have started the termination process, it will not be easy to stop. We will tell you why it is better to think carefully before terminating the contract. And we will show the situations when the legal unilateral termination of the contract will cause more inconvenience than benefit.

When the foundations are determined the parties proceed to the second stage - drawing up a sample of an additional agreement on termination of a contract under 44-FZ. In this document, the customer and the supplier on paper fix the fact of the termination of mutual obligations and confirm their mutual consent to terminate the contract.

Third step - return of the security for the execution of the contract. For the return period, see the contract or the termination agreement itself. According to the established judicial practice, failure to return the security in this case is regarded as unjust enrichment. At the same time, it is important to know that funds under a bank guarantee are non-refundable.

Fourth, final step - This is the placement of information about termination in the EIS. This information is published in the register of contracts. The customer is obliged to send it to the Federal Treasury within five working days from the date of termination.

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

How best to terminate the contract: by agreement of the parties or by court

Early termination of a public procurement contract occurs frequently. The main reasons are the termination of funding or violations by the contractor. As a rule, customers terminate contracts by agreement of the parties or by court order.
, and show the 8 main rules for terminating contracts.
From the article you will learn:
✔ Termination of the contract by agreement of the parties: 5 reasons why it is convenient
✔ Termination of the contract in court: why do you need a pre-trial settlement
✔ 8 main rules of contract termination

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

An agreement on termination of a contract under 44-FZ for the provision of services, the supply of goods or the performance of work is drawn up in two copies, both of which have the same legal force. This document should be kept together with the purchase documentation for at least 3 years.

A sample of an additional agreement on termination of a contract under 44-FZ includes:

• contact details of the customer and supplier;
• indication of Part 8 of Art. 95 44-FZ, part 1 of Art. 450 GK, which allow you to terminate the contract by mutual agreement;
• the volume of actually fulfilled obligations;
• proof of payment;
• the term for the return of the security of the contract;
• an indication that the parties have no claims against each other.

You will find more answers to questions about procurement in the new issue of the magazine "State order in questions and answers"

The procurement process begins with the determination of the winner and ends with the fulfillment of obligations by the parties to the contract. But the fact that a contract has been concluded does not mean that it will be successfully executed. Unfair actions can follow both on the part of the customer and the winner, and each party to the contract may not agree with the claims made against him. You can go to court, but the proceedings will take a long time, which does not always play into the hands of the injured party. Therefore, it is important to know what else can be done in such a situation, whether a unilateral refusal is possible.

In accordance with Art. 95 44-FZ termination of the contract is provided in the following cases:

• by the tribunal's decision;
• termination of the contract by agreement of the parties 44-FZ;
• unilateral refusal.

Reasons for unilateral refusal

Unilateral termination of the contract is allowed under 44-FZ, subject to the following conditions (Article 95): the violation is significant (provided for by the Civil Code of the Russian Federation) and the damage from it exceeds the benefit from the conclusion of the contract, and the contract stipulates the possibility of unilateral refusal.

In accordance with Art. 523 of the Civil Code of the Russian Federation, the grounds for unilateral refusal are:

• the contractor delivered goods of inadequate quality and did not eliminate the deficiencies within the required period;
• repeatedly violated the terms of delivery, performance of work, provision of services, as well as their payment;
• the customer does not purchase goods or services in the volumes or terms that are specified in the contract.

Also, the customer is obliged to terminate the contract if the goods, works, services do not meet the requirements of the technical assignment, the participant does not meet the requirements for persons, or if they are provided with inaccurate information.

Unilateral refusal at the initiative of the customer

Step 1. Make a decision. At the same time, a special document is drawn up in which it is recorded who accepted it and on what grounds. Within 3 working days, information is also posted in the Unified Information System (hereinafter - EIS) (part 12 of article 95).

Step 2. Inform the contractor. This must be done within 3 working days from the date of the decision. The date of notification will be the day when confirmation of delivery to the supplier of a decision document or information that he is absent at his address is received, or after 30 days after placement in the EIS.

Step 3. Terminate the contract or cancel the decision. In the first case, information on termination is posted in the EIS within 1 business day (clause 26 of article 95). But this can only be done 10 days from the date of proper notification of the supplier. If during this period the contractor corrects the violations and compensates the customer for the costs of the examination, he is obliged to cancel the unilateral termination procedure and continue cooperation. In this case, it is necessary to draw up a decision on cancellation. Please note that this rule only applies once.

Step 4. Send information to the Federal Antimonopoly Service (FAS). Within 3 working days after the termination becomes effective, the customer submits information about the unilateral refusal to the FAS to include the supplier in the register of unscrupulous suppliers.

Unilateral termination initiated by the supplier

The process is the same as on the part of the customer, it is required to issue similar documents. To do this, you can use the samples that we have given above.

Step 1. Make a decision and notify the customer about it. Within 3 working days, notification is sent with confirmation of delivery.

Step 2. Refuse to fulfill the contract or cancel the decision. 10 days after proper notification, the contract is terminated or, similarly to the previous case, the decision is canceled if during this time all violations have been eliminated and the losses have been compensated.

Unilateral rejection is a relatively quick process. Thanks to him, the customer and the supplier can defend their interests and legal rights if the other party violates the terms of the contract. In this case, the injured party may demand compensation for the damage suffered. However, do not abuse your unilateral opt-out right. Remember that attempts to evade the contract through unlawful unilateral termination are easily detected during the arbitration process.