Under the Law "On Procurement of Goods, Work, Services by Certain Types of Legal Entities" No. 223-, contracts are concluded in accordance with the rules established by civil laws and the special Provision on Procurement. In the article, we consider the details of concluding an agreement under 223-FZ, namely, on the material conditions, terms that were relevant earlier and are currently in force, the rules, legal liability and other important points.
Framework agreement
Such an agreement is concluded according to the established template, which does not indicate clear information regarding a specific case. The general principles of such documents include the following:
- Open terms.
- There are no exact indicators of volume and price.
- Delivery and shipment are carried out according to further applications, where the exact order parameters are registered.
If the essential conditions are not indicated, then the contract in question will not be recognized as concluded. But then each delivery will have to be considered as a separate contract.
Essential conditions
All conditions included in the agreement without fail are governed by both the procurement regulations and the Civil Code of the Russian Federation. Moreover, the Civil Code is the main regulator of the agreements concluded in our country, regardless of the person acting as a counterparty. From these legal acts it follows that the essential terms of the contract include:
- Subject. This information is indicated in a separate section, which refers to the procurement object previously contained in the corresponding notice.
- Price. The final information is formed on the basis of the results obtained after the completion of the procurement, even in the case of procurement from one supplier. The price of the contract can be changed, but only if this action does not cause a change in state policy regarding pricing.
- Rights and obligations of the parties. In this section, among other things, the specific sizes of the sanctions are indicated, and if they are absent, then clear mechanisms for their calculation should be prescribed.
- The term for concluding the contract under 223-FZ. It is regulated without fail, even if it is a simple form of agreement.
Reimbursable contract
In accordance with applicable law, contracts are onerous and gratuitous. In the case of the Law under consideration, the agreement may be solely onerous. It contains different data. But the essential ones include:
- The subject, according to paragraph 1 of Art. 432 of the Civil Code of the Russian Federation.
- The condition on the list, types of services, as well as the actions performed, in accordance with paragraph 1 of Art. 779 of the Code.
- Cash expenditure.
A contract in which cash is not spent, such as a gift or barter agreement, cannot be considered a purchase. Therefore, it is not necessary to transfer the basic needs to barter transactions, otherwise the supervisory authorities will have questions about the appropriateness of the procedure, as well as regarding the counterparty. There is a possibility that this action qualifies as a violation of the requirements of antitrust laws on tenders, which will entail legal liability.
Procurement Regulation
Details of how the contract is concluded and executed, provided for by Law No. 223-FZ, are considered in the Provision on procurement. The customer is not entitled to deviate from the conditions that are spelled out in it. The regulation may consist of several documents that are placed in the UIS (Unified Information System).
It prescribes the procedure for concluding an agreement under 223-FZ and includes the following data:
- The list of documents required for signing the agreement. Customers themselves determine the appropriate package.
- The rules of their direction. Any methods may be used, for example, by mail, electronic correspondence, fax, and so on. But the best option is to send by registered mail with a notification. Thus, the customer will be able to verify that the contract has been received, and the person who accepted it has the right to perform the agreed actions.
- Dates.
- Rights and obligations of the parties.
If the actions of any party are not registered or are not completely indicated, then the winner has a chance to avoid signing the agreement, and at the same time not be included in the register of unscrupulous suppliers.
The timing
The law does not provide a clear indication of the terms for concluding a contract under 223-FZ. The corresponding procedure is prescribed in the Procurement Regulation by a legal entity. But in practice, a similar question is often raised. We study the reasons for this.
Why do disputes arise?
There are different opinions on what to rely on when developing procurement regulations. Some authors believe that it is necessary to establish the period that was established in the Law "On Placing Orders for State and Municipal Needs" No. 94-FZ. Others believe that it is more correct to be guided by the norms provided for by the Civil Code of the Russian Federation. Still others are sure that it is possible to set any terms for concluding an agreement under 223-. To understand this issue, it is advisable to consider these opinions separately.
Rules of the Civil Code of the Russian Federation
Earlier in paragraph 5 of Art. 448 of the Civil Code of the Russian Federation provided a deadline for concluding an agreement under 223-FZ. This is twenty days after the end of the auction and the creation of a protocol based on their results. This period was indicated in many Procurement Regulations, which were then being developed.
Another question was at what point after the coverage of the procurement results it was possible to conclude an agreement. As a rule, both parties are ready to begin this stage as soon as possible, until the next day after the final protocol is drawn up and signed. Therefore, quite often the contract was concluded already 3-5 days after the end of the auction. However, one must remember the provisions of the Law on Protection of Competition No. 135-FZ. According to him, an agreement signed ten days after drawing up the final protocol violates the foundations of competition.
Returning to the deadline for concluding an agreement on 223-, it should be noted that since 2015, article 448 of the Civil Code of the Russian Federation has been set out in a new edition, where this period is no longer mentioned. Today, a deadline of 20 days applies only to small businesses.
Law No. 94-FZ
Law No. 223 does not refer to provisions of other laws that govern public procurement processes. At the same time, individual developers adhere to the deadlines set forth in articles 29 and 38 of Law No. 94. They state that the contract can be signed no earlier than 10 days after the final protocol is signed. These standards are consistent with the Procurement Law. However, in the case when one of the parties is a representative of a small business, one can thereby come into conflict because of the established deadlines for concluding a contract (20 days).
Bidding discretion
As mentioned above, some developers are of the opinion that you can set your own deadlines. However, they can:
- Sign the agreement within 10 days after the preparation and publication of the final protocol.
- Transfer the signing contract to the winner within 3 days and so on.
Such a point of view may lead to violations of the terms for concluding an agreement under 223-FZ. For example, this deprives other participants of the opportunity to complain about the actions of the organizers of the auction.
Competition Law and related timelines
Law No. 135-FZ spells out the possibility of appealing against the inaction or actions of persons organizing procurement. For example, in Art. 18.1 of the Law indicates the procedure for the consideration of applications in relation to tenders in the FAS. So, in paragraph 4 of Art. 18.1 of the Law states that such a complaint can be addressed no later than 10 days. The term begins to expire from the moment of preparation and publication of the protocol. In this regard, the Antimonopoly Service had to eliminate violations many times due to untimely conclusion of contracts. True, the court did not always make decisions in favor of the FAS.
The main points that are considered in this case by the judicial authority include the following:
- When concluding an agreement under 223-, it is necessary to provide for such conditions that would guarantee bidders the opportunity to appeal against organizational actions.
- If the Procurement Regulation fixes the deadlines that take into account the requirements of Law No. 135-FZ, then the Antimonopoly Service will not be able to take appropriate measures, for example, to suspend trading.
- If the term for signing the agreement is reduced, then this is considered an abuse of law.
Penalties
For non-compliance with the requirements, for example, evasion of the conclusion of the contract under 223-FZ, a fine may be punished. In general, the following types of legal liability may occur:
- Disciplinary.
- Civil.
- Administrative
Criminal prosecution for such violations is not provided. At the same time, certain acts or omissions may constitute the objective side of crimes. Then the punishment will be qualified, for example, under Art. 178 of the Criminal Code of the Russian Federation "Restriction of competition" or in parts 5 and 6 of Art. 204 "Receiving commercial bribery."
And for these crimes a serious punishment is provided. So, in Art. 204 of the Criminal Code provides a fine in the amount of 200 thousand to 1 million rubles, or wages or other income for a period of 3 months to 1 year, or in the amount of 20 to 40 times the amount of commercial bribery. Also, the offender may be deprived of the right to occupy a specific position for a period of up to 3 years.
Disciplinary liability is imposed on the basis of labor law. It applies to officials who violate the rules of the organization’s internal documents.
Civil liability occurs on the basis of the provisions of the Civil Code of the Russian Federation. For example, when a participant incurs losses in the form of lost profits, if, based on the results of an incorrectly held tender, another contractor is selected. It will have to be punished if the customer refuses to conclude an agreement under 223-FZ.
Administrative responsibility
This type of liability occurs for non-compliance or improper implementation of the provisions of Law 223-FZ. Corresponding provisions of the law appeared only in 2014. Depending on the nature of the offense, a fine for officials may amount to from two thousand to fifty thousand rubles, and for legal entities from five thousand to five hundred thousand rubles. In addition, disqualification of up to 1 year may be provided.
Conclusion
As you can see, currently the laws do not contain clear terms for concluding contracts on the basis of procurement results (223-). Therefore, developers can indicate periods that are convenient in them.
The only limitation is the condition that the period of signing the contract should not impede the right of other participants to challenge the actions or inaction of the organizers of the auction. This means that the agreement cannot be concluded within ten days after receiving the results of the auction. Otherwise, the signing of the contract may be regarded as an abuse of law. Then the Antimonopoly Service will order that the relevant violations be eliminated. But in another case, liability arises under Law No. 223-FZ. Refusal to conclude a contract is also considered an offense.