Upon receipt of the text of the contract for signing on the electronic site, some contractors are thinking about the possibility of making adjustments to the document. If their intention does not contradict the current legislation, you can draw up your proposal in the form of a protocol of disagreement. The definition of this document and its main points will be considered in detail in the article.
Disagreement Protocol Definition
The protocol of disagreements is a document which presents the objections of the contractor (executor) with the main points of the contract, as well as its own interpretation of them. The customer may accept this document without objection, may agree with only some points, or may completely reject the differences.
Until a certain point, only participants in the procedure carried out through an electronic auction had the right to send their disagreements, but from January 1, 2019, the legislator provided this opportunity to all participants in the procurement. This means that now both the winners of the request for quotations and those who won in the request for proposals will be able to send the protocol of disagreements to the customer. This innovation allowed the winners of the tender procedures to legally present their requirements for the text of the contract.
When a protocol is required
The protocol of disagreements under 44 Federal Law is signed on the electronic site with an enhanced qualified electronic signature. It is drawn up, as a rule, on the initiative of the contractor, in the following cases:
- The text of the contract contains inaccuracies, spelling errors, typos, and so on.
- The contractor's address or bank details have changed - this situation is often the case with large companies with an extensive branch network - the central office submits an application for participation in the purchase, and the regional representative signs the contract.
- The draft contract sent by the customer differs from the version published together with the notice on the procurement, - these documents must coincide completely.
- Documents that have not been previously announced are attached to the contract - all applications must be published in the Unified Information System (UIS) together with a notice on the competitive procedure.
Terms of sending the document to the customer
Part 4 of Article 83.2 44-FZ regulates the time frame during which the contractor has the right to send a protocol of disagreements, this is the main point that must be taken into account. The protocol sent after the deadline, that is, after five days from the date of placement of the contract in the UIS, will not reasonably be accepted for consideration.
How to place a disagreement protocol on the site
In the EIS, in the section on contracting, it is required to upload a file with the protocol of disagreements and sign it electronically. The customer will familiarize himself with the protocol of disagreements; the time it takes to make a decision is 3 days from the moment the document was posted on the site. It is not necessary to print and sign the protocol yourself; an electronic signature is enough.
Mandatory clauses OL
A protocol of disagreement is a document whose approved form does not exist. Accordingly, there are no strict requirements for the compilation of this document. One way or another, there are key points that need to be considered when preparing the PR project:
- Full name of organizations or individuals that are parties to the contract.
- The subject, date, place of preparation and number of the contract, the provisions of which are in dispute.
- Content of disagreements - as a rule, the contractor makes a table, in the left column of which the revision of the customer is given, and in the right column - the revision of the text desired for the contractor. This view greatly simplifies the consideration of the protocol of disagreements under 44 Federal Laws.
- Date of preparation of the document, signatures of the parties and details.
Avoid vague wording
Lawyers recommend avoiding vague phrases when drafting a PR - for example, “resolving the issue of the delivery of goods as soon as possible” does not give an accurate idea of how soon the delivery will be made; accordingly, it is not clear how the dispute will be resolved. Knowing and taking into account the nuances of compiling such documents is important, first of all, for the party, which, in accordance with the contract, undertakes to fulfill one or another obligation.
Only the head of the organization or another person having legal authority to carry out these actions has the right to sign the PR.
A sample disagreement protocol under 44 Federal Law is presented below.
If the customer agrees to resolve the differences
In this case, the protocol is signed by the parties, after which the contract is re-signed taking into account the adjustment of its individual provisions. Another option is possible - the customer makes an additional agreement to the contract. In practice, the protocol of the disagreement of the auction most often leads to the conclusion of an additional agreement. The parties to the contract, in order to bring business correspondence in accordance with the law, sign a protocol on overcoming disagreements. This document gives reason to believe that all disputed issues are resolved peacefully.
If the dispute is not resolved
If, on the part of the customer, the protocol of disagreements is not signed within three days, then the party that sent the disagreements has the right to appeal to the FAS with a complaint about the actions of the other side. The customer bears both administrative and civil liability for violation of the deadlines for signing such documents established by law. Accordingly, if the protocol of disagreement is rejected, the refusal must be substantiated, and the grounds for refusal must be indicated in the decision.
Recognition of a tenderer as an evader
If an agreement has not been reached on the issue of signing the protocol of disagreement, the customer can apply to the territorial department of the Federal Antimonopoly Service with a request to recognize the contractor as evading the conclusion of the contract.
If the other party declines to have evaded its obligations, the customer is entitled to use the funds contributed by the contractors as security for the execution of the contract. If the documentation provided for the introduction of security in the form of a bank guarantee, the customer applies to the bank that issued such a document with a request for the recovery of funds in the declared volume.
It is important to note that in such a situation, the contractor who considers his rights violated has the right to prove his position in court. If the procurement participant judicially admits that he was found to have evaded the conclusion of the contract unlawfully, he will have the legal right to recover losses from the customer related to debiting funds secured by a bank guarantee.
Examples of violation of law by customers
Sometimes the customer considers a protocol of disagreement, sent after the deadline established by law.
Consider the following situation:
For example, the last day for the PR direction is 02/01/2019. The procurement participant places the protocol on 02/04/2019. The customer considers the received document and makes changes to the contract 02/08/2019.
Result: the customer receives an order from the control body for the fact that instead of recognizing the procurement participant as evading the signing of the contract within the prescribed time, enters into a contract with him.
FAS has the right to bring the customer to administrative responsibility for such a violation.
Another example is the situation in which the procurement winner, instead of drawing up a protocol of disagreement, sent the customer a draft contract with the corrected details. The customer did not consider the changes significant and signed the agreement (contract) as proposed by the other party.
As a result, the customer violated the provisions of the law on the contract system by signing the contract as amended. In such a situation, one should ignore the demand of the auction winner or explain to him the current procedure for resolving disagreements.
Typical Procurement Violations
We have already examined the situation when the winner of the tender sends the corrected draft contract to the organizer instead of drawing up a protocol of disagreements. Such actions contradict the established order of actions of the parties in resolving disagreements and may lead to the fact that the winner of the tender will be recognized as evading the signing of the contract.
Another common mistake is that the procurement winner addresses the bidding organizer with a request to amend the clause of the contract, which were indicated by the customer even when the notice of the procedure was published. If such a document is sent to the customer, the latter has the right to classify the received claim as not having signs of a protocol of disagreement.
It is typical that most often the winners of auctions require customers to change or completely remove from the contract text clauses relating to the supplier’s responsibility for delay in fulfilling obligations. Another common misconception is the ability to change the terms of the contract in terms of payment - many suppliers require instead of 100% payment of obligations after the provision of services (work) to make an advance payment condition in the contract.
Of course, the grounds indicated above are contrary to the law, therefore they are reasonably rejected by customers. There is judicial practice proving that such decisions of bidders are consistent with the law on the contract system.