Based on the results of the electronic auction, a contract was concluded on the basis of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs." In the process of performing work, the work schedule was violated. Part of the work under the municipal contract has been completed, but the contractor is unable to cope with the work schedule, and some of the deadlines have already been violated. Both parties to the contract understand that the contractor will not be able to perform the work under the contract on time without violations, and are ready to terminate the contract. The customer will need to immediately make a new purchase to perform all those works that were not completed under this contract. Is it possible to partially terminate the contract? What deadlines must be met for a new purchase (amendments to the schedule, procurement plan, etc.)?

On this issue, we take the following position:
The parties have the right to terminate the contract by agreement of the parties. In itself, the termination of the contract by agreement of the parties does not indicate any violation. However, under the circumstances described, in our opinion, it is in the interests of the customer to either refuse to perform the contract (if possible), or go to court to demand termination of the contract.

Position justification:
By virtue of the Federal Law of 05.04.2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ), the legislation on the contract system is based, among other things, on the provisions Civil Code of the Russian Federation. In this regard, when resolving disputes arising from state (municipal) contracts, the courts are guided by the norms of N 44-FZ, interpreted in conjunction with the provisions of the Civil Code of the Russian Federation, and in the absence of special norms, directly by the norms of the Civil Code of the Russian Federation (see also the preamble of the Review of judicial practice of application of the legislation of the Russian Federation on the contract system in the field of procurement of goods, works, services to meet state and municipal needs, approved by the Presidium of the Supreme Court of the Russian Federation on June 28, 2017).
According to the Civil Code of the Russian Federation, any obligation arising in civil legal relations (, Civil Code of the Russian Federation) is terminated in whole or in part on the grounds provided for by the Civil Code of the Russian Federation, other laws, other legal acts or an agreement (see also the Civil Code of the Russian Federation). N 44-FZ does not provide for special grounds for terminating contracts concluded in accordance with this law, limiting itself to indicating that the 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 perform the contract in accordance with civil law (Law N 44-FZ).
N 44-FZ does not indicate that the contract, regardless of any circumstances, must be executed in full. In accordance with Law N 44-FZ, the parties to the contract have the right to terminate it on the basis of their agreement, including in a situation where the contract cannot be performed by the counterparty on time (see the Ministry of Economic Development of February 10, 2015 N D28i-175, of January 29, 2015 N , dated 12/18/2014 N , dated 12/11/2014 N ). At the same time, the mere fact that the contract was terminated by agreement of the parties does not prevent the recovery of penalties from the contractor for improper performance of the contract (see more about this, for example, in the answer to: A municipal contract was concluded between the customer and the supplier for the performance of work. Contractor under the contract did not perform the work stipulated by this contract. The contract was terminated by agreement of the parties after a delay in performance made by the contractor. The contract establishes two types of sanctions - a fine for non-performance of obligations and penalties for each day of delay. The contractor was charged a penalty in the form of a fine provided for Does the customer have the right to recover penalties in court for the delay in fulfilling obligations under the contract, if the agreement on termination of the contract states that the customer has no claims against the contractor?
The fact that part of the work has been completed by the contractor does not prevent the termination of the contract. By virtue of the Civil Code of the Russian Federation, upon termination of the contract, the obligations of the parties cease. At the same time, contractual obligations are considered terminated from the moment the parties conclude an agreement to terminate the contract, unless otherwise follows from this agreement (the Civil Code of the Russian Federation). Accordingly, the termination of the contract means the termination of all obligations of such an agreement for the future (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 21, 2005 N 104, clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 6, 2014 N 35). The obligations fulfilled by the time the agreement on termination of the contract was drawn up are already terminated by proper performance (the Civil Code of the Russian Federation), they cannot be terminated a second time. These provisions should be applied taking into account the Civil Code of the Russian Federation, by virtue of which the parties are not entitled to demand the return of what was performed by them under an obligation before the termination of the contract, unless otherwise provided by law or by agreement of the parties, and also taking into account the principles of compensation and equivalence of exchanged material objects in the relations regulated by it, the inadmissibility of unjust enrichment, on which civil law is based (, Civil Code of the Russian Federation, see also the Presidium of the Supreme Arbitration Court of the Russian Federation of 19.01.2010 N 13966/09).
Thus, unless otherwise provided by agreement of the parties, termination of the contract by agreement of the parties does not lead to "partial termination of the contract", but to the termination of all obligations arising from it and not fulfilled (including obligations to accept the result of work and payment). The obligations of the contractor fulfilled before this have already been terminated and are payable if the relevant work has been performed properly (see, for example, the answer to: The customer has decided to unilaterally refuse to perform the contract (this possibility is provided for by the contract and the procurement documentation). work amounted to 10 days.The work was completed by 90%, and the customer believes that due to the delay he has the right not to pay.Is the customer obliged to pay the contractor the cost of partially completed work at the time of termination of the contract? (Response from the Legal Consulting Service GARANT, November 2014 .)).
In conclusion, we note that, by virtue of the provisions of Law N 44-FZ, information about contractors with whom contracts were terminated by a court decision or in the event of a unilateral refusal of the customer to perform the contract due to a material breach of contract terms by them is included in the register of unscrupulous suppliers. Therefore, if there are appropriate grounds (the fault of the contractor) in the situation under consideration, in our opinion, it is advisable for the customer to use these methods of terminating the contract. Of course, in addition, the customer should take all necessary measures aimed at recovering from the contractor the amounts of the penalty for improper performance of the contract, as well as losses caused by such improper performance. This is due to the fact that if the implementation of a new purchase entails the need to spend additional funds compared to the price of work, which was provided for by the terminated contract, the behavior of the customer's officials will be assessed by the regulatory authorities, including from the point of view of the efficiency of spending funds. However, it is not possible to assess the prospects for resolving this issue within the framework of this consultation.

For your information:
1. Information on the termination of the contract by agreement of the parties and the agreement on such termination itself must be sent by the customer for inclusion in the register of contracts within 3 working days (clause 8, part 2, part and Law N 44-FZ). In addition, information about changing the contract must be posted by the customer in a single information system (hereinafter referred to as the UIS) within 1 business day following the date of the contract change (Law N 44-FZ).
2. Termination of the contract by agreement of the parties does not relieve the customer from the obligation to send a request to the counterparty to pay a penalty fee in case of violation by the latter of the deadline for the performance of work (provision of services) stipulated by the contract (Law N 44-FZ). The obligation to pay a penalty arises from the contractor only if there is fault (the Civil Code of the Russian Federation). By virtue of Law N 44-FZ, a party is exempt from paying a penalty (fine, penalty interest) if it proves that the failure to fulfill or improper performance of an obligation stipulated by the contract occurred due to force majeure or through the fault of the other party.
3. To make a new purchase, the customer should first make the appropriate changes to the schedule. The cases when a municipal customer makes changes to the schedule are listed in Law N 44-FZ, as well as in the Requirements for the formation, approval and maintenance of a schedule for the procurement of goods, works, services to meet the needs of a constituent entity of the Russian Federation and municipal needs, approved by the Government of the Russian Federation from 06/05/2015 N 554 (hereinafter referred to as the Requirements) (Law N 44-FZ). One of such cases is "the occurrence of other circumstances, which could not be foreseen at the date of approval of the schedule" (clause "g", clause 10 of the Requirements). In accordance with Law N 44-FZ, changes to the schedule for each procurement object can be made no later than 10 days before the date of posting a notice in the EIS or sending an invitation to participate in determining the counterparty in a closed way. Changes made to the schedule shall be posted in the UIS within 3 working days from the date of the change in the schedule, with the exception of information constituting a state secret (Law N 44-FZ).

We also recommend that you read the following materials:
- Encyclopedia of decisions: Termination of the contract according to N 44-FZ;
- Encyclopedia of solutions. Termination of the contract under N 44-FZ by a court decision;
- Encyclopedia of solutions. Responsibility of the supplier (fine, penalty) under the contract according to N 44-FZ;
- Calculator of penalties charged to the customer;
- Encyclopedia of solutions. Making changes to the schedule;
- Encyclopedia of solutions. Placement of a notice of procurement.

Prepared answer:
Legal Consulting Service Expert GARANT
Chashina Tatiana

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

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

1. Termination of the contract how it happens Termination of the contract within the framework of 44-FZ occurs on the basis of its 95 article, as well as within the framework of the Civil Code (CC) of the Russian Federation. It is worth noting that termination can occur three of the orders:

• Unilateral
• Judicial
• By agreement of the parties

We will talk about this below.

2. Termination of the contract by agreement of the parties

Termination of the contract upon the addition of both parties is determined in part 8 in article 44-FZ 95, but not a word is said about how this type of procedure occurs. To understand how this happens, you should refer to the Civil Code of the Russian Federation.

In Part 1 of Article 450 of the Civil Code of the Russian Federation there is a clear indication of the possibility of terminating the contract with the consent of both parties by default, including if this clause was not spelled out in the contract. 44-FZ also lacks such a clause on the introduction of instructions on this procedure in the documentation. That is why the Customer cannot refer to the fact that this clause does not exist, such actions will be considered illegal.

Termination of the contract with the consent of both parties is provided only in cases described by Article 451 of the Civil Code of the Russian Federation, For example:

Unforeseen circumstances (force majeure)

The importance of the circumstances.

Based on the above data, it can be noted that, nevertheless, the only thing worth taking care of is the execution of documentation confirming the consent to termination by both parties. This requirement is established by Article 452 of the Civil Code of the Russian Federation.

And based on Article 103 of Article 44-FZ over the next 3 days, the Customer undertakes to provide information about this.

2.1. What entails the termination of the contract by agreement of the parties.

Based on the norms prescribed in Article 453 of the Civil Code of the Russian Federation, the only thing that happens after the mutual termination of the parties is the end of obligations to each other. When terminating the contract in this way, the Customer does not have the right to submit data to the RNP.

3. Termination of the contract unilaterally

Termination of the contract by one of the parties is regulated by part 8 of article 44-FZ, part 95, this occurs if information about the implementation of such an action was recorded in the contract documentation during the period of conclusion. Otherwise, it will be possible to terminate the contract exclusively in court.

Any party can terminate the contract in cases that are prescribed in the Civil Code of the Russian Federation. The actions of both the customer and the contractor will not differ much - the procedure is regulated by Article 95 of Article 44-FZ.

Step 1. Notification of the partner that you are going to terminate the contract.

This is done in absolutely any way, the only condition is confirmation of receipt, so it is more reliable to do this:

• By registered mail
• Send by E-mail
• Telegram

After that, the partner with whom they want to break off the relationship is given a period of 10 days for which he can correct his state of affairs.

If none of the parties needs this period, we proceed to:

Step 2 Calculation of the parties.

After notification, it is necessary to make a payment for partially fulfilled obligations.

After that happens:

Step 3 Termination of the contract.

That's right, after the payment for partially fulfilled obligations takes place, the transaction becomes invalid.

3.1. For what reasons can a supplier terminate relations with a customer without his consent?

3.2. Reason for unilateral withdrawal from the contract by the customer

№	Cause	What is regulated
1	Delivery of goods of inadequate quality. The fact must be fixed by independent experts.	2 point in article 523 of the Civil Code of the Russian Federation
2	Delivery of goods in an incomplete configuration if the contractor refuses to correct the error.	2 point in article 480 of the Civil Code of the Russian Federation
3	Violation of delivery terms, at least two times.	2 point in article 523 of the Civil Code of the Russian Federation
4	The contractor did not start the execution of the transaction on time or violated the schedule	Paragraphs 2-3 in Article 715 of the Civil Code of the Russian Federation
5	Refusal to eliminate deficiencies discovered during the execution of the transaction.	3 point in article 723 of the Civil Code of the Russian Federation
6	Clarification of non-compliance with the conditions for the execution of the transaction within the framework of 44-FZ	15 paragraph in article 95 44-FZ
7	Other circumstances provided for by the legislative framework of the Russian Federation	-

3.3. What does unilateral termination of a contract entail?

The legal framework here is not entirely fair. Penalties are provided for both parties, but only one gets into the RNP - and it's not so difficult to understand which one. The register into which unscrupulous customers are entered simply does not exist, but perhaps it would be very useful.

4. Termination of the contract in court

A similar method of termination of the contract is provided in the following cases:

• There is no possibility to terminate the contract unilaterally
• Reach an agreement on both sides

4.1. What entails the termination of the contract through the court.

If the court decided to terminate the contract through the fault of the contractor, then the information will be transferred to the RNP.

You should also be prepared to pay legal fees and penalties.

If the customer turned out to be guilty, then he will pay everything (including the fine stipulated by the contract).

5. How to avoid unwanted consequences when terminating a contract

To avoid such twists of fate, you should make it a rule - enter into a deal only if you are confident in your own abilities, and also treat with care and study all the clauses of the contract before you put your signature.

If you still need to break the contract - try to negotiate! The consent of both parties is the best option, which will prevent disastrous consequences.

The last thing I would like to say is that if the Customer terminated the contract against your will and without reason, then do not despair, because you can protect your rights through the courts.

6. Video instruction Unilateral termination of the contract under 44-FZ

For a guaranteed result in tender purchases, you can seek advice from the experts of the Entrepreneurship Support Center. If your organization belongs to small businesses, you can get a number of advantages: advance payments under government contracts, short settlement periods, conclusion of direct contracts and subcontracts without a tender. and work only on profitable contracts with minimal competition!

Any contractor who has concluded a contract with a state customer as a result of an electronic auction (purchase) knows how difficult it is to prove his case. Because 44 FZ, which regulates this sphere of relations, is strictly regulated and has a “bias” in favor of the customer.

Analyzing the practice of state contracts when preparing a lawsuit, I noticed that the contractor (executor) often does everything possible and impossible to get penalized or not get paid for his work. Agrees to additional work without paperwork, or draws up an additional agreement, forgetting (or not knowing) that the law prohibits changing the contract value by more than 10%. Doesn't start work on time because the customer "doesn't mind". Or he cannot start work - because the object is not yet ready, but does not notify the customer in writing. You can list here for a long time and such behavior, in principle, is characteristic of many due to legal unpreparedness.

Nevertheless, despite the peculiarity of the provisions of 44 of the law, the contractor can still protect his rights and defend the truth in court. Terminate the contract if its interests are violated by the customer, or completely recognize it as not concluded - if the subject of the contract does not correspond to the actual work at the facility (and this happens very often, by the way. In the electronic documentation, the customer indicates one thing, and upon completion of the auction, the contractor (executor) discovers fact is different).

Grounds for termination of the state contract at the initiative of the contractor

The Law on Public Procurement does not contain special grounds for termination of the contract at the initiative of the contractor, referring to the general norms of the Civil Code of the Russian Federation. General norms are, first of all, the norms on the provision of services for a fee, the contract or special norms on the construction contract. At the same time, as stated in the law, the Contractor has the right to terminate the contract if such a right is provided for by the contract for the customer (Article 95). In other words, the right of the customer to terminate the contract opposed to a similar right of the contractor even if this is not specifically stated in the contract.

The contract may be terminated without a trial on the grounds specified in the law or in case of material breach by the other party judicially.

grounds for extrajudicial termination not much, it is: paragraph 2 of Art. 782 of the Civil Code of the Russian Federation (for paid services), clause 3 of Art. 716, paragraph 2 of Art. 719 of the Civil Code for a contract, clause 3 of Art. 745 GK for a construction contract. If these articles are suitable, the main thing is to follow the procedure for terminating the contract, notify the customer of the decision.

For all other reasons, there is only one way - the judicial one (Articles 450, 451, 709 of the Civil Code of the Russian Federation). The breaches on the part of the customer must be significant to the extent that the contract would not have been concluded at all, and the contractor is deprived of what he originally counted on. At the same time, the practice under Article 709 of the Civil Code (increase in the cost of materials) is different and more negative.

Before filing a claim, it is necessary to send a claim-notice describing the violations, even twice.

And one more thing to consider. If the work under the contract was not performed, and their volume, cost, the object of work itself do not correspond to the agreed conditions, in this case it is more expedient to file a claim for recognition of the contract as not concluded, and not to terminate it. Because termination implies in any case some consequences for the parties.

A little about practice

In the summer of 2017, the Review of the Armed Forces on Public Procurement was released. And here's what's interesting. In paragraph 12, the court indicates that the parties do not have the right to increase the cost of work by more than 10% by entering into an additional agreement. Of course, they can sign the document (which, by the way, happens very often), but then it will be very difficult for the contractor to collect payment in court over this limit - the court will satisfy the claim only if it establishes that the work was necessary and revealed during the execution of the contract. As you can see, additional work should not be incidental or otherwise, they should be related to the main ones, be necessary. But what happens in practice? The customer asks the contractor to do something extra, signs the agreement. The contractor (especially a small business entity) believes that he has a document - he will collect payment in court in which case, he performs the work. But it wasn't here.

In paragraph 14, the Supreme Court indicates that it is enough to indicate in the contract the right of the party to terminate it, without disclosing specific reasons for termination. And at the same time, the parties have the right to describe in detail the essence of the violation, which will be the basis for the withdrawal of the party from the contract (paragraph 15).

Thus, if the customer violates contractual obligations, increases the volume, etc., there is no need to negotiate, wait. You should at least send notices of violation and go to court.

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Termination of the State Contract

PROCEDURE FOR TERMINATION OF THE STATE CONTRACT. We start proceedings in this category of cases only after a preliminary analysis and preparation of a legal opinion in writing for the Customer indicating the prospects (a paid service).

Termination of a government contract is a standard procedure provided for by law. The state contract is terminated in several cases: by a court decision, by agreement and unilaterally.

Practice shows that the termination of a government contract is a fairly common situation and arises for objective reasons:

Inability to fulfill obligations for reasons beyond the control of the contractor (for example, the customer cannot decide on the choice of goods),

The customer no longer needs to supply the goods or services for which the contract has been concluded,

Various force majeure (for example, natural disasters).

Termination of obligations by agreement of the parties - the best option for resolving disagreements

In situations that have developed in practice, when the obligations of the parties cannot be fulfilled due to objective reasons, the termination of the state contract by agreement of the parties is the most painless procedure. Termination of the state contract by agreement of the parties under Federal Law-44 occurs on the basis of a written agreement.

At the same time, the parties do not have the right to demand compensation for what has already been performed under the contract. An agreement to terminate the contract by agreement of the parties has a prescribed form. It must include the following items:

About the fact of termination of the contract with indication of its details,

A clause on mutual settlements between the supplier and the customer at the time of termination of the contract, indicating the full cost,

The date of termination of bilateral obligations is fixed,

On the absence of mutual claims,

Signatures and details of both parties.

The agreement on termination of the state contract is drawn up in two copies and issued to the customer and supplier. If necessary, both parties have the right to make necessary additional clauses to the agreement. Unilateral refusal of a government contract is most often a conflict situation, a more complicated legal procedure, but it takes place if this clause was indicated when signing the contract.

Realization of the right to unilateral refusal to fulfill agreements

Termination of a government contract can be a requirement, both on the part of the customer and on the part of the supplier, legally it is strictly regulated. Each of the parties has the right to unilateral refusal to execute the state contract. But in practice, most often this situation leads to a conflict of the parties.

The Civil Law Code of the Russian Federation provides for the situation that one of the parties may decide to unilaterally terminate contractual obligations, but only on legal grounds. That is why such an opportunity is foreseen in advance and is prescribed even at the conclusion of the contract.

In the event of a gross violation of contractual obligations by each of the parties, which lead to significant financial losses for the other party, this is the main reason that gives the right to exercise the right to unilaterally terminate the fulfillment of contractual obligations.

During the validity of the contract, the customer discovered a discrepancy between the information about the contractor (for example, found him on the list of unreliable), he has the right to terminate the contractual agreements unilaterally. Or, when concluding a contract, the supplier used forged documents.

Suppliers have the right to terminate the contract on their part. But for this it is important to observe two rules when processing documents:

Write a clause on the possibility of terminating the contract,

The supplier cannot terminate the contract unilaterally, this condition is met only if the customer has the same right.

Implementation of the customer's right

To establish violations of the fulfillment of obligations under the contract, the customer must conduct an examination. If the fact of violations of the clauses of the contract is established, a written notice of termination of the contract is sent to the supplier:

To do this, you need to send a registered letter with a notification,

Send an email.

The customer must make sure that his notification is received by the opposite party. The letter indicates the reasons that are a good reason for terminating the agreements. In the absence of good reasons, the customer has no right to make claims.

The legislation establishes a 10-day period for the supplier to eliminate the claims filed. If they are eliminated within this time, the customer must cancel the decision to terminate the contract. The customer can cancel such a decision only once. If violations are repeated, the supplier has every chance of being included in the register of unscrupulous contractors.

There are many situations when the customer needs to withdraw from the contract unilaterally. The legislation provides for such situations. But for this, the customer must fulfill a number of requirements. If the legal procedure for unilateral termination of the state contract is violated, it will be fined by the antimonopoly authority.

Implementation of the provider right

The supplier has the same right to terminate the contract due to non-performance of contractual obligations. This item must be spelled out when concluding a state contract. In this case, the procedure is carried out in the same manner as when the contract is terminated by the customer.

The opposite party is notified of the termination of the contract by letter and must eliminate the comments within ten days. For any of the parties, upon termination of the state contract, compensation is provided only for financial losses; compensation for moral damage is not provided for by law.

The right of the customer and the supplier to refuse can be motivated (conditional) and unmotivated (unconditional). Reasoned refusal of the contract is associated with a gross violation of the terms of the contract. An unmotivated refusal is also the right of the customer (supplier), his personal desire, subject to compensation for actual losses.

In addition, the supplier has the right to appeal against the decision of the executive bodies to terminate the contract and put it on the "black list". He can apply with a counter statement that, for his part, he is also the initiator of the termination of the agreements. This happens if he was not officially notified of the customer's decision.

When the defendant is considered legally notified

The contract cannot be terminated by one party without formal notice to the other party. The defendant is considered officially notified:

The sender received an official notification of the delivery of the notice, which informs about the termination of the contract,

The sender received a letter with a note that the specified addressee is missing,

After 30 days from the date of the appearance of the customer's refusal from the contract in a single information system.

Possible consequences of the termination of the state contract

After termination of the contract, all contractual obligations between the parties to the contract are canceled. The consequences of such a decision will largely affect the contractor (supplier) of contractual obligations that were terminated at the initiative of the customer. The appearance in the "black list" is a serious blow to his reputation.

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Sample termination agreement

The mutual consent of the parties as a document must be drawn up in writing and in copies that are multiples of the number of parties (usually 2 pieces). After signing, one of them remains with the customer, the second - with the supplier. Both such agreements are completely identical for each of the parties and have equal legal effect.

At the legislative level, there are no mandatory requirements for such documents, but in practice, some rules have nevertheless been developed.

The agreement states:

• contact information for both parties;
• the fact of a mutual agreement with reference to specific legislative acts (Article 450 of the Civil Code of the Russian Federation and 44-FZ);
• the volume of obligations of each of the parties that were actually fulfilled, as well as their monetary equivalent;
• the remaining amount within the framework of obligations that have been fulfilled;
• the period during which it is necessary to return the funds that were previously paid as an advance payment (ensuring compliance with the terms of the state contract);
• an indication of the fact that the parties do not have any claims against each other;
• details of each of the participants in legal relations on the state contact, signatures of representatives.

ATTENTION! View the completed sample agreement on termination of the contract by agreement of the parties under 44-FZ:

In what form is an agreement to terminate a document drawn up?

Particular attention should be paid to clause 1.Art. 452 of the Civil Code of the Russian Federation. This rule tells us that the consent of the parties to terminate the contract must be signed in the same form as the contract itself.

This means that if there was, for example, state registration or notarization of the transaction, then with the consent to terminate, the same actions must be performed.

The exception is cases of signing a compensation agreement. In such a situation, the above rule does not apply, since the execution of a compensation is an independent transaction, the consequence of which is the termination of the relationship between the parties due to a certain requirement of the law, and not due to the opinion of the parties.

Remember! Violation of the rules regarding the form of voluntary consent of the parties to terminate the contract may entail a number of consequences:

• non-conclusion of an agreement on the basis that the voluntary consent of the parties is not fully proven ( ruling of the Moscow City Court under the number 4g-741/2016 dated February 2, 2016);
• invalidity of the document signed by the parties (resolution of the Arbitration Court of the Moscow District in case No. А41-82273/2015 dated September 21, 2016).

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues.

Algorithm for the termination procedure

Step 1. Determine the reasons for termination

A directly listed list of reasons for the possible termination of the state contract is not provided.

But, again, the practice has developed the following grounds for terminating the relationship between the customer and the supplier:

• no need for further deliveries of goods or the provision of a specific type of service. For example, the supply of food for workers will decrease in volume due to staff reductions;
• force majeure - situations in which the supplier, regardless of his will, will not be able to fulfill the terms of the state contract (fire, flood, natural disaster, etc.).

It is also possible to sign an agreement to terminate the contract under 44-FZ if the supplier does not fulfill or poorly fulfills the terms of the contract. For example, violation of deadlines, product quality, etc.

Important! The refusal of the state customer from services unilaterally will lead to bringing the other party to responsibility (a fine, penalties, compensation for losses or lost profits, entering into the register of suppliers that violate the terms of cooperation), and with the mutual, voluntary consent of the parties, punishment can be avoided.

Step 2. Proper execution of the agreement on termination of the state contract

At this stage, it is necessary to draw up and sign a document stating that the parties mutually agree to terminate the relationship between themselves under a specific supply or service agreement.

It is also necessary to point out the fact that from the moment of signing such an agreement, the parties in relation to each other cease all rights and obligations.

Step 3. Collateral return

Under the state contract, as well as under any other contract, it is possible to make an advance payment. The termination of the relationship between the customer and the supplier leads to the return of the security under the contract (ie prepayment). Such rules are enshrined in paragraph 2 of Art. 453 of the Civil Code of the Russian Federation.

The refund period is specified in the agreement or in the contract itself. If the prepayment is not returned, the actions of the supplier will be considered as illegal enrichment without any grounds for this (clause 1, article 1102 of the Civil Code of the Russian Federation).

Attention! An exception to the rule is a bank guarantee, it is not returned under any circumstances.

Step 4. Posting information about the termination of the contract in a special information data exchange system (EIS)

Within one working day from the date of signing the consent of the parties to terminate the contract, the parties are obliged to place information on the termination of legal relations in the Unified Information System. An exception is a contract, the content of which is a state secret.

Within the next working week, a report on the implementation of all clauses of the contract should be published on the same portal. This rule is enshrined in Decree of the Government of the Russian Federation under the number 1093 of November 28, 2013.

Watch the video. Termination of the contract by agreement of the parties (44-FZ):

The nuances of terminating the contract by agreement of the parties under 44-FZ

The law establishes a number of nuances regarding the procedure and conditions for concluding an agreement on the termination of legal relations between a customer and a supplier. For example, parts 9 and 10 of Article 94 of this regulatory legal act regulate the obligation of the ordering party to place on the Internet on the official website all information about the termination of the state contract in the form of a report.

Important! In the UIS, the customer must gradually publish all information on the progress of the execution of the contract, as well as on the work performed, services rendered or products delivered.

In most detail, such a report should include information on:

• during the execution of the contract, i.e. that the goods have been delivered or the service has been performed, as well as the requirements for meeting deadlines and compliance with the schedule;
• non-fulfillment or improper fulfillment of the terms of the state contract by the customer. With references to the clauses of the contract that were violated;
• responsibility of the customer for the committed violations;
• the facts of termination or amendment of the contract with the disclosure of the reasons for such actions.

Legislation

Part 8 of Article 95 44-FZ indicates the possibility of termination of the state contract by agreement of the parties. The termination of the relationship between the parties is also permissible due to the refusal to fulfill the terms of the contract by one of the parties, but only by virtue of the decision of the judge.

Part 1 of Article 160 of the Civil Code of the Russian Federation defines a transaction and says that it must be carried out by drawing up a document in writing, followed by its signature by the parties entering into legal relations.

At the same time, in cases provided for by law, it is allowed to use an electronic digital signature or its other facsimile reproduction. This rule is indicated to us by part 2 of article 160 of the Civil Code of the Russian Federation. As a result, we conclude that the use of an electronic digital signature is equivalent to a transaction in a simple written form.

As already mentioned, by virtue of Part 1 of Art. 452 of the Civil Code of the Russian Federation, agreement to terminate the contract must be carried out in the same form as the contract itself between the parties, unless, based on law or business custom, it is impossible to do otherwise.

Analyzing the above, we recall once again that the termination of the contract by the voluntary consent of the parties must be formalized in a simple written form.