Approval of goods with improved characteristics 44 fz. Is it legal to change the technical characteristics of the results of construction and installation work during the execution of a contract by agreement of the parties? How to accept goods with improved characteristics

A contract has been concluded. Now, to draw up an additional agreement, the characteristics of the goods provided for in the contract and the goods “with improved characteristics” are compared. But it turns out that improved characteristics are not visible in all positions. Thus, it is impossible to specify improved characteristics for a product in an additional agreement for all indicators. What should an organization do in this situation? Which control bodies and how can they see a violation in this situation?

Answer

Oksana Balandina, chief editor of the State Order System

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The criteria for determining improved characteristics and quality of goods are not established by Law No. 44-FZ, and therefore we can conclude that the customer independently determines and agrees with the contractor on such criteria. We believe that the customer should be ready in the event of an inspection (for example, a planned one) to justify why it was determined that the product is “improved” compared to the one purchased under the terms of the contract.

Control in the field of procurement is described in Art. 99 of Law No. 44-FZ. Part 1 of Art. 99 of Law No. 44-FZ establishes that control in the field of procurement is carried out by the following control bodies within the limits of their powers:

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• FAS Russia, executive authorities of the constituent entity of the Russian Federation authorized to exercise control in the field of procurement;
• Treasury of Russia, financial authorities of constituent entities of the Russian Federation and municipalities;
• State financial control bodies, which are executive authorities of the constituent entities of the Russian Federation.

According to Part 1 of Art. 34 of the Law on the Contract System, the contract is concluded on the terms provided for in the notice of procurement or invitation to participate in determining the supplier (contractor, performer), procurement documentation, application, final offer of the procurement participant with whom the contract is concluded, except for cases in which in accordance with the Law on the Contract System, a notice of procurement or an invitation to participate in determining the supplier (contractor, performer), procurement documentation, application, and final offer are not provided.

In accordance with Part 2 of Art. 34 of the Law on the Contract System, when concluding a contract, it is indicated that the contract price is fixed and determined for the entire period of execution of the contract, and in cases established by the Government of the Russian Federation, the approximate value of the contract price or the price formula and the maximum value of the contract price established by the customer in the documentation are indicated about the purchase. When concluding and executing a contract, changing its terms is not allowed, except for the cases provided for in Art. 34 of the Law on the Contract System and Art. 95 of the Law on the Contract System.

In turn, according to Part 7 of Art. 95 of the Law on the Contract System, when executing a contract, upon agreement between the customer and the supplier (contractor, performer), it is allowed to supply goods, perform work or provide services, the quality, technical and functional characteristics (consumer properties) of which are improved in comparison with the quality and corresponding technical and functional characteristics specified in the contract. In this case, the corresponding changes must be made by the customer to the register of contracts concluded by the customer.

At the same time, the criteria for determining improved characteristics and quality of goods are not established by the Law on the Contract System, and therefore we can conclude that the customer independently determines and agrees with the contractor on such criteria. It seems that the customer should be ready, in the event of an audit, to justify why he determined that the product is “improved” compared to that purchased under the terms of the contract.

Thus, based on the literal interpretation of the Law on the Contract System, when executing a contract, upon agreement between the customer and the supplier (contractor, performer), it is allowed to supply goods, perform work or provide services, the quality, technical and functional characteristics (consumer properties) of which are improved in comparison with with the quality and corresponding technical and functional characteristics specified in the contract.

This can be formalized by concluding an additional agreement to the contract, which will be the basis for the supply of goods, performance of work or provision of services, the quality, technical and functional characteristics (consumer properties) of which are improved in comparison with the quality and corresponding technical and functional characteristics specified in contract

Please note that when concluding the above additional agreement, information about it must be entered by the customer into the register of contracts concluded by the customer.

In accordance with clause 8, part 2, art. 103 of the Law on the Contract System, the register of contracts includes information about changes to the contract indicating the terms of the contract that have been changed.

In accordance with Part 3 of Art. 103 of the Law on the Contract System, the specified information is sent by customers to the Federal Treasury within three working days from the date of change in the contract.

Attention is also drawn to this obligation in the Letter of the Ministry of Economic Development of Russia dated March 13, 2014 No. OG-D28-1757 “On the procedure for customers to send information (documents) on changes, execution, termination of the contract, acceptance of goods supplied, work performed, services rendered.”

Control in the field of procurement is described in Art. 99 of Law No. 44-FZ.

This article establishes an exhaustive list of bodies exercising control in the field of procurement, a list of persons in respect of whom said control is exercised, as well as the subject and features of control in the field of procurement.

Part 1 of Art. 99 of Law No. 44-FZ establishes that control in the field of procurement is carried out by the following control bodies within the limits of their powers:

1. FAS Russia (federal executive body authorized to exercise control in the field of procurement and a control body in the field of state defense procurement), executive authorities of a constituent entity of the Russian Federation, local government bodies of a municipal district, local government bodies of a city district authorized to exercise control in the field procurement;
2. The Treasury of Russia (the federal executive body that carries out law enforcement functions for cash services for the execution of budgets of the budget system of the Russian Federation), financial bodies of the constituent entities of the Russian Federation and municipalities, management bodies of state extra-budgetary funds;
3. Bodies of internal state (municipal) financial control, defined in accordance with the Budget Code of the Russian Federation.

At the same time, in accordance with Art. 265 of the Budget Code of the Russian Federation, state (municipal) financial control is divided into external and internal, preliminary and subsequent, in particular:

• external state (municipal) financial control in the field of budgetary legal relations is a control activity of the Accounts Chamber of the Russian Federation and the control and accounting bodies of the constituent entities of the Russian Federation and municipalities, respectively;
• internal state (municipal) financial control in the field of budgetary legal relations is the control activity of the Federal Service for Financial and Budgetary Supervision (Rosfinnadzor), state (municipal) financial control bodies, which are, respectively, executive authorities of the constituent entities of the Russian Federation, local administrations.

Replacement of goods with improved characteristics is possible; this is provided for in the provisions of Part 7 of Art. 95. This possibility is allowed provided that the following requirements are simultaneously met:

1. replacements are agreed upon by both parties to the contract: the customer and the supplier.
2. The consumer properties, technical and functional characteristics of new products are better than those initially expected to be supplied.
3. Regulatory legal acts adopted for implementation purposes (Article 14 44-FZ) do not prohibit such replacement.

If the first condition does not cause difficulties, then the last two require special attention.

44-FZ does not explicitly regulate the supply of goods with improved characteristics. The law does not establish criteria by which it can be clearly determined that indicators have improved. The customer has the right to decide this independently, but it is not allowed to change the subject of the contract. This position is set out in the letter of the Ministry of Economic Development dated December 9, 2014 No. D28i-2705.

It is worth considering that when conducting inspections, control authorities may require justification for changes in the characteristics of the supplied products. Especially in a dual situation, when it is impossible to say unequivocally that things have improved. For example, when delivering a car, a change in engine size, on the one hand, can be considered as an increase in power, which is good, and on the other hand, as an increase in fuel consumption, which is bad.

An important point is that the supplier can improve performance only at the stage of fulfilling the terms of the contract. This cannot be done during the procedure for identifying a supplier, that is.

Algorithm of changes

Step 1. Determine whether the quality of the new product is improved compared to what was previously expected to be delivered.

A sample of improved product characteristics under 44-FZ can be seen below.

Step 2. Check if there is a national ban.

Step 3. Agree on new indicators between the supplier and the customer.

Step 4. Make changes to the contract. To do this, you will need to sign an additional agreement. A sample of it is presented below.

According to Part 3 of Art. 103 if changes have been made to the terms of the contract, the customer publishes this information in the Unified Information System within three working days from the date of such changes.

As you know, 44-FZ establishes strict rules regarding the execution of a contract. When executing a contract, changing its terms is not allowed, with some exceptions. The customer must be supplied with exactly the goods that were offered when submitting the application and for the supply of which a contract was concluded.

Difficult situations

However, in practice, parties to a contract sometimes find themselves in difficult situations, even when acting in good faith. Thus, a procurement participant may make a mistake in describing the characteristics of a product when submitting an application and describe the product in such a way that its delivery with exactly these characteristics becomes impossible.

Another possible situation: the participant submitted an application, correctly describing the product, but by the time the contract was concluded and executed, this product was not available on the market for some reason.

A possible way out of these situations is the supply of goods with improved characteristics. This possibility is provided for by the provisions of Law No. 44-FZ and is permissible only with the consent of the customer. For information on how to arrange such a delivery, read the letter from the Ministry of Finance below.

Article 95 of the Law on the Contract System in the Field of Procurement provides for the possibility of changing the contract in order to supply goods with improved characteristics of 44-FZ or accept it.

What is considered improved characteristics?

Such a replacement means the replacement of products, which are indicated in the contract specification, with a similar one, but with better functional and technical characteristics.

For example, in accordance with the terms of the contract, the supplier must supply medical devices. However, at the time of expected delivery, a new medical product of similar application, but with much better performance, enters the product market. In such a situation, the customer needs to decide whether he will purchase the goods specified in the contract or whether there is a need to replace the item of delivery.

It should be noted that, within the framework of 44-FZ, replacement of a product with improved characteristics is possible both upon the customer’s request to the supplier, and vice versa. And often it is suppliers who offer to supply the best products. And in this case, the customer decides whether he is ready to accept the changed conditions.

How to make changes to a contract

Let's figure out what actions need to be performed if the parties have agreed to supply an improved product:

1. An additional agreement to the contract is drawn up (its execution is the responsibility of the customer).
2. The parties are considering it.
3. If there are no disagreements, the document is signed.

Without such a document, it is impossible to transfer products with the best performance.

A budget organization that acts as a supplier should remember: in order to transfer products with the best performance, an appeal is drawn up to the customer. It is drawn up in writing and can be of any form. For convenience, you can include a comparative table with the performance of the previous and new product models.

It is important to remember that after agreeing and signing the above agreement, the corresponding changes must be reflected in the register of contracts within one business day from the date of conclusion of the additional agreement (Part 26, Article 95 44-FZ). This is the responsibility of the customer.

Sample additional agreement

Like any other agreement, the document in question must contain the name and details of the parties between whom it is concluded. Next, it is necessary to reflect what exactly the parties agreed on. For example, “within the framework of Part 7 of Article 95 of 44-FZ, the parties agreed to change the specification - Appendix No. 1 to Agreement No. 08 dated 08/01/2017 as amended.” The provisions that are subject to change are necessarily fixed in their new edition.

When the contract is executed, offers of more favorable conditions arise. How to make sure that both the performer and the customer recognize the benefits of this? Do they need to negotiate? Let's talk about this and about the documents with which the parties confirm their positions.

What are improved indicators in 44-FZ

The contract system provides for the possibility of more favorable quality indicators, technical and functional characteristics of goods, works, services (Part 7, Article 95 of the Federal Law No. 44-FZ). According to 44-FZ, replacement of goods with improved characteristics is allowed during the execution of the contract (except for cases under Part 6 of Article 14).

In its letter, the Ministry of Finance of Russia (No. 24-03-07/37745 dated June 16, 2017) recalls important provisions of the law:

1. The terms of the contract are not subject to change, except for the cases specified in Articles 34 and 95.
2. Criteria for determining the improved qualities of the subject of the contract have not been established.

This gives the customer the right to independently decide whether there are more favorable indicators among those proposed by the contractor.

Algorithm for changing the subject of the contract to an improved one

Legislative norms do not provide for the supply of goods with improved characteristics of 44-FZ to be carried out on the basis of a unilateral decision. This possibility must certainly be agreed upon between the contractor and the customer. We recommend submitting your proposal in writing.

For example, the contractor under the contract can formalize his proposal in the form of a letter to the customer. The letter should indicate:

• details of the current contract;
• norms of law on the basis of which the appeal was drawn up;
• reasons for supply changes.

On these grounds, the contractor proposes improvements in specific parameters (technical, functional or operational characteristics). In his letter, he also confirms his intention to fulfill his obligations in full.

If the customer agrees to accept such a delivery, an additional agreement must be concluded between the parties. Based on part 1 Art. 452 Civil Code, the agreement to change is made in the same form as the contract.

Before signing the relevant agreement, the customer should also establish in documentary form (as an internal organizational document) that the criteria are considered beneficial to them and provide the reasons for such a decision (for example, an expert opinion).

The customer reflects changes in the contractual terms with the supplier in the register of contracts concluded by him.

Sample additional agreement

In this section we provide an example of an additional agreement to a government contract and propose a general template on the basis of which a supplier can draw up his own sample of improved product characteristics under 44-FZ.

We draw your attention to the indication in the letter of the Ministry of Economic Development (No. D28i-123 dated January 11, 2017) that the country of origin of a product is not an indicator of its quality, technical and functional characteristics.