The legislation of the Russian Federation provides for the establishment of legal relations between state or municipal structures and private suppliers of goods, services and works by signing special contracts. These agreements must be concluded in accordance with strict rules established in separate sources of law. Their signing and execution is characterized by a large number of nuances. What is the specificity of legal relations drawn up through state contracts? How are they made?
What could be the subject of a government contract?
The state contract is concluded for the purpose of legalizing legal relations, the subject of which is the sale of goods or the provision of services for the needs of authorities arising from the need for these structures to exercise their powers. The customer within the framework of the relevant contract is the state, and the contractor may be an organization, individual entrepreneur or individual.
What might a government contract look like? An example of the structure of the corresponding document is in the picture below.
A contractor under a state contract can be either related to government agencies or independent of them. In some cases, a state contract can also be concluded with foreign entities, as a rule, in cases where the authority cannot order the goods or services domestically.
The type of legal relationship under consideration is within the framework of procedures and terms specified by law. We study their specifics in more detail.
Procedure and terms for concluding a state contract
The first stage of registration of legal relations with the participation of the state and its contractors is the drafting of the contract under consideration. It is developed directly by the authority, that is, by the customer, and then sent to the supplier. If the other side of the legal relationship is satisfied with the terms of the contract, then she signs it within 30 days, after which she passes the copy of the contract to the state body that developed the draft agreement.
In some cases, the conclusion of a state contract is carried out after tendering as part of the procedure for placing a state order for the needs of authorities. In this case, the time period for signing the corresponding agreement may be different: the agreement can be concluded no earlier than 10 days after signing the tender protocol, but no later than 20 days after the implementation of this procedure.
If the supplier does not sign the contract within the time period specified by law, then the right to conclude an agreement with the state is transferred to another business entity. As a rule, the one who will offer the next most profitable price in the bidding. At the same time, a company that has refused to conclude a state contract may be entered in the register of unscrupulous counterparties. In this case, the relevant organization will not be able to participate in bidding at state orders for 3 years.
The conclusion of a state contract involves the determination of its conditions. We will study this aspect in more detail.
Government Contract Terms
The terms of the contract concluded by the supplier of certain goods or services with the state are classified:
- to significant;
- on obligatory;
- to others.
The first type of conditions of the relevant agreement include:
- subject;
- deadlines;
- the cost of deliveries and the procedure for their payment.
If the counterparty works under the simplified tax system, the contract price is indicated without VAT. If not, the amount of value added tax is reflected in the contract price structure.
The mandatory conditions of the contract include:
- place of performance of the agreement;
- acceptance procedure for the delivered goods;
- terms of liability of parties to legal relations.
As a rule, a state contract involves the establishment of a liability procedure, according to which the state or its counterparty shall pay in case of failure to fulfill the terms of the contract a penalty calculated taking into account the current refinancing rate of the Central Bank. If either party proves that failure to fulfill the terms of the contract took place due to force majeure or other objective reasons, the penalty is not paid.
Other conditions of the contract include, in particular, its provision. It will be useful to consider its specifics in more detail.
Collateral as a condition of the contract
By collateral in the context of such an agreement as a state contract it is customary to understand a financial guarantee that a supplier fulfills goods or services under a state order. If the counterparty of the authority is unable to solve the tasks, then by providing the customer will be able to cover the resulting losses.
The main types of government contracts support :
- bank guarantee;
- insurance;
- surety;
- pledge.
At the same time, the amount of security under government contracts should not exceed 30% of the price of deliveries of goods or services, as recorded in the notice of initiation of tenders.
Even if the terms of the contract between the state and its counterparty are agreed, subsequently they can be changed one way or another. We study how this can be done.
Changes to the terms of the state contract
First of all, we note that the conditions of the state contract, which are essential, the terms, place of implementation of legal relations, and also the price structure cannot be adjusted. However, it is permitted to change such agreement options as:
- data on the parties to the transaction (changes in them can be predetermined, for example, by certain adjustments in the constituent documents, details);
- information on the quantity or volume of goods or services ordered by the state;
- the total price of the contract, if, for inflationary reasons, the factors affecting the cost of the supplier change during a long-term agreement.
Moreover, any change in the terms of the state contract initiated by one party to the transaction must be accepted by the partner by agreement.
Let us now examine in what order the state contract expires.
Contract Termination
A state contract (contract) may be terminated if:
- parties fulfilled basic obligations;
- partners jointly decided to end the relationship;
- the relevant contract was annulled by the court.
The contract is terminated, as a rule, in civil proceedings. A hearing regarding the annulment of the agreement is thus initiated by one of the parties. At the same time, she can appeal to the court only if her partner refused to terminate the contract if there are legal grounds for it, or if the counterparty has not received a response to the relevant proposal within the prescribed time - under the contract or under the law.
State and municipal contract - a tool for documenting legal relations, which is governed by the provisions of Art. 72 of the Civil Code of the Russian Federation, as well as Federal Law No. 44, adopted on 05.04.2013. Consider the features of the legislative regulation of the procedure for concluding state contracts in more detail.
Legislative regulation of state contracts: article 72 of the RF Civil Code
So, among the key sources of law, the jurisdiction of which extends to enterprises participating in legal relations under state contracts is the Budget Code. In accordance with the provisions of Article 72 of the Civil Code of the Russian Federation, the procurement of various goods, works or services in order to meet the needs of state or municipal authorities is carried out in the format of a contract that:
- concludes a procurement plan for goods, services or work;
- formed in accordance with the established rules of law;
- It is paid subject to limits within the framework of budgetary obligations, which are established in the legislation.
The RF BK identifies a separate category of agreements - state contracts for the supply of certain goods for the Russian Armed Forces within the framework of programs approved by the President of the Russian Federation. These contracts may be concluded subject to payment of supplies within the limits of monetary funds, which are determined by the terms of the respective programs.
The RF Civil Code also states that a state contract for the provision of services or the performance of work with a duration of the implementation cycle exceeding the validity period of the limits within the framework of budgetary obligations can be paid within the amount of money that is determined by decisions made by the authorities in accordance with the procedure defined by the provisions of the BC RF.
If the subject of the state contract is the delivery of goods within a period that exceeds the validity period of the budgetary commitment limits, the relevant agreements can be concluded taking into account the rules of law governing legal relations in the contract system for the procurement of certain goods.
Legislative regulation of state contracts: Federal Law No. 44
The next most important source of law that determines how the conclusion of the state contract is implemented is Federal Law No. 44. The law under consideration entered into force on January 1, 2014. Prior to this, public procurement was regulated by another source of law - Federal Law No. 94, adopted on July 21, 2005. The differences between the relevant laws are significant.
Thus, it can be noted that the term “contract” is used in the new federal law, as some lawyers note, as the main one, as an alternative to the concept of “contract”. The state contract in accordance with Federal Law No. 44 is defined as an agreement that is concluded on behalf of the Russian Federation, state or municipal entity to ensure certain needs. Actually, we already considered this definition at the beginning of the article.
According to experts, the new federal law was adopted with the aim of:
- increasing the transparency of public procurement transactions;
- reduce corruption in building legal relations between the state and its counterparties;
- increase efficiency, rationality of spending state funds in various procurements.
The main advantage of Federal Law No. 44 is the creation of a legal environment in which legal relations between government agencies and their counterparties are preliminarily planned, and the execution of the state contract is rather strictly controlled.
Consider the main innovations in the legislative regulation of state contracts under Federal Law No. 44 in more detail.
Conclusion of contracts under Federal Law No. 44: Key Innovations
Among the most noteworthy innovations under Federal Law No. 44 is the need to establish special services in government agencies that ensure the legality of concluding the agreements in question. The composition of these services should include competent specialists in the field of public procurement, who are able to build the appropriate legal relations with the counterparty by law, to promote a better understanding of their specifics by partners. Federal Law No. 44 instructs state and municipal structures to establish the services in question if the price of the state contract is more than 100 million rubles.
The next innovation in Federal Law No. 44 is to establish an obligation for the authorities, which consists in implementing long-term procurement planning. Federal Law No. 94 prescribed to draw up annual plans. The new law obliges the customer to formulate additional plans for 3 years.
As for the current procurement schedules, they should be published in the Unified Information System or EIS in accordance with Federal Law No. 44, and this is another innovation under the federal law under consideration. This infrastructure is intended primarily for the organization of tenders. But through the EIS, you can also get acquainted with procurement plans, data on the implementation of existing contracts, price dynamics, offers from various market participants.
It can be noted that along with the EIS, there are a number of other information bases that are available to contract participants and other interested parties. In particular, there is an online registry of government contracts - a key resource that reflects data on the needs of government agencies, actual deliveries to various regions of the Russian Federation, information on sources of financing tenders.
Another major innovation in Federal Law No. 44 is the stimulation of a decrease in dumping in the field of public procurement. In accordance with the rules introduced by the source of law in question, a company intending to conclude a state contract for the supply of goods, services or work, and offering a price 25% lower than what was originally proposed, should thoroughly substantiate this discount and provide evidence that quality supplies will be at a sufficient level. In addition, the dumping enterprise will have to provide security for the state contract in an amount that is one and a half times higher than that given in the tender. Only in this case, this company will be able to participate in the competition for the conclusion of public procurement.
A supplier who has signed an agreement with the state and fulfilled its obligations under it before drawing up an acceptance certificate must conduct an examination to determine whether the delivered goods or services are in compliance with the contract, generate a report on the work performed, and publish this document in the UIS. This requirement also applies to the most important innovations in the Federal Law No. 44.
Let us now examine a number of practical nuances that characterize the conclusion of state contracts. In particular, it will be useful to consider in more detail what are the features of signing the relevant agreements.
Signing government contracts: the nuances
Work under the state contract can be initiated by one or another business entity by:
- participation in tenders (we have already considered this mechanism above);
- request for special quotes, as a method alternative to the first scheme.
The involvement of both mechanisms implies that the participants in the legal relationship under consideration comply with a number of deadlines established by law. So, if a company intends to participate in tenders, then it should connect to them after protocols on prospective contracts are published on the auction site, but not earlier than 10 days after that and no later than 20 days. We have already said this above.
The second mechanism, in turn, involves requesting quotations no earlier than 7 days after posting the protocol quotes on the website, as well as receiving estimates of applications for state contracts, but no later than 20 days following the date that is reflected in the protocol. Within the statutory term of the state contract, an economic entity has the right to appeal the results of participation in the tender. The agreement becomes valid only from the moment it is signed by the customer and supplier.
As we noted above, in cases provided for by law, a contract can be canceled. Most often, a party has the right to terminate a state contract if the counterparty evades performing its duties. The next nuance of interaction between government agencies and their counterparties, which we can examine in more detail, is the execution of a state contract.
Execution of the state contract: nuances
What can you pay attention to in terms of legal rules governing this aspect of legal relations involving the state and its counterparty?
The most important nuance in this case is that the conditions of the contract must be fulfilled, unless otherwise provided by objective reasons, the essence of which the business entity can explain. That is, if either party fails to fulfill its obligations, it will have to pay a penalty if it cannot confirm that the defect is due to force majeure or other circumstances. The main thing is to prepare evidence that obstacles to the fulfillment of the terms of the contract arose without the participation of an economic entity, and could not be removed at his request.
The next most important aspect of the legal relationship in question is the provision of a state contract. What are its main nuances?
Government Contract Guarantees
The main purpose of securing state contracts is to compensate the costs of any of the parties to the legal relationship that arose due to non-fulfillment by the counterparty of the terms of the contract. As a rule, such a scenario arises if for some reason it does not have the necessary funds to cover the costs of the execution of the contract.
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