The procedure for public procurement in the Russian Federation is regulated by 44-FZ. Art. 95 of this normative act defines the grounds and rules for amending and terminating a contract concluded as a result of tendering. Let us consider some of the provisions of the article.
General information
Termination of the contract is allowed on the basis of a court decision, by agreement of the parties to the transaction, as well as with the unilateral refusal of one of the entities to execute it. In this case, the parties should be guided by the rules of the Civil Code.
Unilateral termination of the contract
As Article 95 of Federal Law No. 44 establishes, the customer may unilaterally refuse to execute the contract on the grounds provided for in the Civil Code, if the corresponding possibility is fixed in the contract itself. To make an appropriate decision, he has the right to attract specialists to conduct an examination of the work performed, delivered products, or services provided.
Termination of the contract is allowed if, according to the research results, a violation of the terms of the transaction by the executor is confirmed, which has become the basis for refusal.
Artist Notification
According to Part 12 of Art. 95 44-FZ , in case of refusal of the customer to fulfill the contract, he is obliged to notify the second party about this within three days from the date of adoption of the relevant decision. In addition, he is obliged to place this information in the UIS (Unified Information System).
The customer sends his decision to the contractor (supplier, contractor) by registered mail (with delivery confirmation) to the address indicated in the contract, by fax, telegram to an email address or in any other way, which ensures the fixation of the dispatch and confirmation of receipt of the notice.
Termination of the contract is allowed only subject to the specified requirements. The date of proper notification shall be the day the customer receives confirmation of the delivery of the notice to the supplier (contractor, contractor).
Meanwhile, obtaining such confirmation is not always possible. In these cases, the day upon expiration of 30 days from the date of posting of the information in the UIS will be recognized as the date of proper notification.
Entry into force of the decision
A unilateral refusal gains legal force and entails the corresponding consequences after 10 days from the date of proper notification of the contractor. Accordingly, the contract will be declared terminated.
The customer must cancel his decision if, within ten days, the contractor (contractor, supplier) eliminates the violations that were the basis for the refusal to perform. In this case, the second side must compensate for its costs of the examination.
The requirement to cancel the decision does not apply to cases of repeated violation by the executor (contractor, supplier) of the terms of the transaction, which, according to the Civil Code, is the basis for unilateral refusal.
Termination obligation
The customer must refuse to fulfill the contract if:
- In the process of implementing the terms of the transaction, it will be established that the products, work, services or contractor (contractor, supplier) do not meet the requirements established in the notice or documentation on the purchase, the winner of the tender provided inaccurate information about himself or the product, which allowed him to win.
- During the execution of the contract drawn up in accordance with the provisions of 47, clause 1 of part 93 of article No. 44 for the supply of products whose production has been modernized / created / mastered on the territory of the Russian Federation on the basis of a special investment agreement, such a special agreement was terminated. A similar rule applies in case of termination of the state contract concluded on the basis of Art. 111.4 44-, in the process of implementing the conditions of the purchase.
Information about the contractor (contractor, supplier) with whom the contract was terminated is indicated in the register of unscrupulous business entities.
The nuances of the law
Upon termination of the contract due to a unilateral refusal, the customer may purchase services, products, works that were the subject of the transaction, based on the provisions of 6 clause 2 of part 83 of article 83 of Federal Law No. 44.
If the supplier partially fulfilled the obligations before the termination of the legal relationship, the volume of work performed, the services provided or the goods supplied should be reduced by the appropriate amount when concluding a new contract. Similarly, the transaction price is adjusted.
Agreement termination by agreement
In accordance with part 14 of article 34 of the Federal Law No. 44, the contract may provide for the possibility of termination of the contract due to a unilateral refusal to implement the terms of the transaction, according to parts 8-26 of art. 95. The specified norm also establishes that early termination on this basis is allowed if the relevant clause is present in the contract itself. With regard to the termination of legal relations by agreement of the participants, Federal Law No. 44 does not fix such a requirement.
As established in Part 1 of Article 450 of the Civil Code, the adjustment of the terms and termination of the contract is allowed by mutual agreement of the participants, unless otherwise provided in the Code or other regulatory acts, as well as in the contract. Therefore, if the parties have not fixed such an opportunity in the document, it exists by virtue of the law.
Article 451 of the Civil Code also provides that termination of the contract is allowed due to a significant change in circumstances. In other words, the situation has changed so much that if the participants could have foreseen this, they would not have made a deal at all or would have made, but on different conditions.
Practical implementation of the provisions
In the framework of the turnover, the parties by mutual agreement may terminate the contract when:
- Inability of the supplier to fulfill the terms of the transaction for reasons beyond his control. For example, the delivery time has expired, and the customer has not selected all products.
- Elimination of the need for delivery from the customer.
- Force Majeure. It is, in particular, about force majeure circumstances: natural disasters, technological disasters, strikes, etc.
Documenting
Article 452 of the Civil Code establishes the general procedure for terminating a contract. The norm says that an agreement to amend or terminate a relationship is drawn up in the same form as the original contract. Consequently, the agreement on termination of the contract must be written and certified by the parties to the transaction.
Effects
They are mentioned in article 453 of the Civil Code. In case of termination of the contract, the obligations of its participants are terminated at the time of conclusion of an agreement on this, unless otherwise provided by the terms of the transaction, the law or other regulatory acts.
The parties may not demand the return of everything that was performed under the transaction until the termination of legal relations. Another rule may be enshrined in law or agreement.
It must be said that in case of termination of the contract by mutual agreement, information about the supplier (contractor, contractor) is not sent to the supervisory authority for subsequent inclusion in the register of unscrupulous business entities.
Customer Reporting
The procuring entity needs to remember the obligations set forth in Federal Law No. 44. In particular, the customer is required to issue a report in the regulatory enactment. It should contain information on the results of a separate stage of the contract, information on delivered products, services provided or work performed.
In case of improper fulfillment of the terms of the transaction by the supplier (contractor, contractor), these data are also reflected in the report. The document also provides information on changing or terminating the contract.
The regulation on the preparation and placement of the document in the UIS was approved by Government Decision No. 1093 of 2013. On the basis of this normative act, a report with information about the termination of the contract is placed by the customer within seven days from the date of signing the agreement, the date of entry into force of the decision of the customer or supplier (contractor, contractor ) on unilateral refusal to fulfill the terms of the transaction.