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A contract is an agreement between two or more persons to establish, change or terminate civil rights and responsibilities.

It is the Civil Code that all this time determines in our state the legal status of participants in civil transactions, the grounds for the emergence and procedure for the exercise of real and intellectual rights, and also regulates contractual and other relations based on equality, autonomy of will and property independence of participants in civil transactions.

Article 422 of the Civil Code of the Russian Federation determines the relationship between the contract and the law, in particular that the contract must comply with the rules obligatory for the parties, established by law and others legal acts(imperative norms) in force at the time of its conclusion.

Adopted on July 18, 2011 the federal law from No. 223-FZ "On the procurement of goods, works, services certain types legal entities" (hereinafter referred to as the procurement law), regulating the procedure for procurement by certain types of legal entities. The procurement law came into force on January 1, 2012, with the exception of provisions for which the law itself provided for a different period. It was from this date moment for legal entities covered by the procurement law (hereinafter referred to as customers), the conclusion of an agreement for the supply of goods, performance of work, provision of services for the needs of such a person began to be regulated not only by general, but also by special rules of law.

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The concept of procurement, procurement in electronic form is not disclosed in the current version of the procurement law or by-laws. According to the law on the contract system, the purchase of goods, work, services to meet state or municipal needs (hereinafter referred to as procurement) is a set of actions carried out in the manner prescribed by law by the customer and aimed at meeting state or municipal needs.

The Procurement Law, in contrast to the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as the law on the contract system) does not provide for the development standard contracts and/or their terms and conditions, which all customers are required to use, but determines those terms of the contract that are essential for such contracts. So, in part 5 of Art. 4 of the Procurement Law stipulates that if, during the conclusion and execution of a contract, the volume, price of purchased goods, works, services or terms of execution of the contract change compared to those specified in the protocol drawn up based on the results of the procurement, the customer places in a single information system information about changes to the contract indicating the changed conditions.

In connection with the above, questions arise: how do the essential terms of the contract under the Civil Code of the Russian Federation and the procurement law compare, what rights do customers have, what is important to consider when preparing a contract, how to protect yourself from unscrupulous suppliers? Let's consider the most general provisions drawing up contracts.

The supply agreement is one of the most common civil law contracts. Under a supply agreement, the supplier-seller engaged in entrepreneurial activities undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in entrepreneurial activity or for other purposes not related to personal, family, household or other similar use.

The price of the goods is not included in the essential terms of the supply agreement. If the price of the goods is not indicated in the contract, then it is determined in accordance with clause 3 of Art. 424 of the Civil Code of the Russian Federation: "In cases when compensation agreement the price is not provided and cannot be determined based on the terms of the contract; the execution of the contract must be paid at the price that, under comparable circumstances, is usually charged for similar goods, works or services." However, the absence of a price in the supply contract contradicts the essence of the purchase, due to 5 Article 4 of the Procurement Law.

• Essential terms of the supply agreement (according to the Civil Code of the Russian Federation):
• subject of the contract, i.e. name and quantity of the product, its range and completeness (Article 454-491 of the Civil Code of the Russian Federation).
• delivery time (Article 506 of the Civil Code of the Russian Federation).

The subject of the contract is the terms and conditions of the product, its name, quantity and quality.

When determining the subject of the contract, the customer must accurately indicate the non-substitution name of the product, standards numbers, technical specifications, articles and others necessary documents, for compliance with which, subsequently, it will be possible to check the delivered goods.

If goods of the same name are required for delivery, but with different characteristics, this circumstance must also be taken into account in the contract.

Typically, any supply agreement is “supplemented” by the product specification, i.e. a separate annex to the contract, which displays all the main characteristics of the product, for example, the full name of the product, its unit of measurement, technical (functional) characteristics of the product, requirements for containers and packaging, delivery schedule, etc. You can also clarify whether misgrading is acceptable, whether deviations from the size, weight, volume of goods, etc. are possible. A link to such an application must be displayed in the contract itself.

... when goods are supplied by weight, the contract must specify gross or net weight, or both...

According to Article 19 of the Civil Code of the Russian Federation, “A period established by law, other legal acts, a transaction, or appointed by a court is determined by a calendar date or the expiration of a period of time, which is calculated in years, months, weeks, days or hours. The period can also be determined by an indication of an event that must inevitably come."

When the supply contract provides for the supply of goods during the term of the contract in separate batches and the delivery dates for individual batches (delivery periods) are not defined in it, then, according to the current legislation, the goods must be supplied in equal monthly batches, unless otherwise follows from the law, other legal acts, the essence of the obligation or business customs.

In accordance with Part 1 of Art. 511 of the Civil Code of the Russian Federation, a supplier who has allowed a short supply of goods in a separate delivery period is obliged to make up for the short-delivered quantity of goods in the next period (periods) within the validity period of the supply contract, unless otherwise provided by the contract. Accordingly, the obligation to replenish the underdelivered quantity of goods can be assigned to the supplier only within the validity period of the supply agreement, i.e. It is necessary in the supply agreement to define and separate the duration of the agreement and the period for fulfilling the obligations of the counterparty!

The Procurement Law does not regulate the period for which contracts for the supply of goods are concluded, but only obliges customers to post on the official website a plan for the purchase of goods, works, and services for a period of at least one year. (Letter of the Ministry of Economic Development of Russia dated September 2, 2011 No. D28-317)

• determine the subject and price of the contract;
• periods of delivery of goods (in one batch, several batches, according to schedule);
• the procedure for delivery of goods (for example, the type of transport by which the goods will be transported, the supplier’s obligation to agree with the buyer on the delivery time, the possibility of early delivery only with the buyer’s consent, etc.);

• quality of the product (legal (GOST, SNiP, etc.) and contractual), including, the product must be new;
• the goods are not encumbered by any rights of third parties;
• procedure and period for acceptance of goods;
• payment procedure;
• at whose expense and by whose means the goods are delivered;
• when the goods become the property of the buyer (the moment of transfer of ownership);
• actions of the buyer in case of violation of obligations by the supplier;
• the duration of the contract and the period for fulfilling the supplier’s obligations;
• supplier's warranty obligations (In relation to a product for which an expiration date has been established, the buyer has the right to make claims related to defects in the product if they are discovered during the expiration date of the product. In cases where stipulated by the contract guarantee period is less than two years and the defects of the goods were discovered by the buyer after the expiration of the warranty period, but within two years from the date of transfer of the goods to the buyer, the seller is liable if the buyer proves that the defects of the goods arose before the transfer of the goods to the buyer or for reasons that arose before that moment) ;

The Supplier cannot be considered late in fulfilling its obligations under the contract in cases where it supplied goods of inadequate quality or incomplete, but the Buyer did not properly notify the Supplier of their replacement, elimination of deficiencies or completion of such goods, and they were not accepted by the Buyer for safekeeping. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 22, 1997 No. 18

• procedure for termination of the contract and procedure for compensation of losses;
• other conditions.

A work contract is an agreement according to which one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver the result to the customer, and the latter undertakes to accept the result of the work and pay for it. The work contract is one of the oldest civil law contracts; it was known to Roman law. It is important to note that contract agreements with individuals according to the procurement law, they are a procurement and must be regulated by the provisions of the relevant law and the requirements of the customer’s procurement regulations.

Price, according to general rule, as in the case of a supply agreement, is not an essential condition of the contract. The law establishes that instead of directly specifying the price, the contract may provide for ways to determine it, and in the absence of appropriate conditions, the execution of the contract must be paid at the price that is usually charged for similar work. Judicial practice under construction contracts (as opposed to contracts paid provision services) the norms established by law in terms of essential conditions are also supported, for example, the Federal Antimonopoly Service of the Volga Region in Resolution No. A65-24457/2008 dated March 11, 2011 indicated that only the conditions on the content and scope of work and the timing of their implementation are essential for a contract.

Essential terms of the contract (according to the Civil Code of the Russian Federation): subject of the contract, i.e. conditions on the content and scope of work, deadline for completion of work.

A contract is concluded for the manufacture or processing of a thing (that is, the creation of a new thing as a result of the destruction of an existing thing), the processing of a thing (that is, improving the qualities or changing the consumer properties of an existing thing) or for performing other work with the transfer of its result to the customer. Such work does not necessarily have to be aimed at making or improving the thing; the contractor’s work can be aimed at destroying the thing. It should be noted that, according to judicial practice in disputes arising from a work contract, an indication of the object on which the work is to be carried out, specifying its location, is necessary to determine the subject of the work contract.

The result of the work performed by the contractor must be transferred to the customer; in addition, under a contract concluded for the manufacture of an item, the contractor transfers the rights to it to the customer. Therefore, the result of the work must not only be materialized, but also be separated from the contractor.

The result of a contract can be: a manufactured (created) thing; new (updated) property (quality) of a thing; another result expressed in a material medium.

The contract must indicate the initial and final deadlines for completing the work; deadlines for completing individual stages of the work (interim deadlines) may also be provided. Interim deadlines are usually established if the contract involves a long period of work. The contract must provide for cases and procedures for changing the terms established by the contracts.

Unless otherwise established by law, other legal acts or provided for by the contract, the contractor is responsible for violation of both the initial and final, as well as intermediate deadlines for the completion of work.

If the procedure for determining the deadline for completing the work is agreed upon in the contract and there is no uncertainty between the parties regarding the timing of the work, the term condition is agreed upon. Resolution of the Federal Antimonopoly Service of the East Siberian District dated March 10, 2010 in case No. A58-1431/09.

The price of the contract includes compensation for the costs incurred by the contractor in performing the work and the remuneration due to him. Usually the contract price is expressed in a monetary amount.

The law establishes a “presumption” of a fixed contract price, i.e. unless the contract defines the price as approximate, then the legislator a priori considers it fixed. Thus, the law protects the interests of the customer, since when concluding a contract on a fixed price basis, the risk of increased construction costs due to an increase in the volume of work, the implementation of which is actually necessary to achieve the result stipulated by the contract, and, accordingly, the costs are borne by the contractor. In addition, the law provides for the possibility of changing the fixed contract price, for example, in the case where the contractor’s actual expenses turned out to be less than those taken into account when determining the price of the work, and the customer proves that the contractor’s savings affected the quality of the work performed, the customer has the right to demand a reduction in the fixed price .

• determine the subject of the contract (including specifying the facility where the work is to be carried out);
• scope of work;
• deadlines for completing the work: initial, final, intermediate (include a work schedule in the contract);
• order and stages of work;
• is it allowed to involve subcontractors, who is responsible for violation of the terms of the contract by subcontractors, how the price changes when subcontractors are involved;

• quality of work (usual or contractual). Any deviation from the contract can be considered low-quality, even if it does not prevent the use of the work result for its intended purpose in principle, it is enough that it is not suitable for the customer;
• procedure and deadline for acceptance of work;
• the possibility of conducting an independent examination, determining the party that bears the corresponding costs;
• the payment procedure, including the procedure and terms for the return of the advance payment, if it is provided for in the contract;
• when the result becomes the “property” of the customer (risk of accidental death and responsibility for the result of the work performed);
• actions of the customer in case of violation of obligations by the supplier;
• contract time;
• warranty period (general or contractual) and contractor's warranty obligations. With a short guarantee, the customer can present claims to the contractor related to defects in the work result even after the warranty period has expired, but within two years. Unless otherwise provided by the contract, the quality guarantee applies to everything that constitutes the result of the work performed;
• the amount of the penalty (legal or contractual), the procedure and terms for its collection;
• the procedure for terminating the contract and the procedure for compensation for losses, including the right of the customer at any time before delivery of the result of the work to him to refuse to fulfill the contract by paying the contractor only part of the established price in proportion to the part of the work;

• "labor safety" - requirements for contractors to ensure safe conditions labor, requirements for ensuring safe working conditions when organizing work by employees of subcontracting organizations, acts and work permits, introductory briefings...;
• other conditions.

Despite the fact that the law defines the concepts of “work” and “service,” the issue of distinguishing between these two concepts still remains problematic. There is an opinion that the regulation of contracts for the provision of services and performance of work should be uniform. The rules of civil law stipulate that general provisions on contracts and household contracts apply to an agreement for the provision of services for a fee, if they do not contradict the “special rules” about this agreement and the peculiarities of its subject matter, therefore, cases quite often arise when in practice confusion arises associated with mixing of these agreements. Let's try to determine the difference.

Under a contract for the provision of services for a fee, the contractor undertakes to provide services on the instructions of the customer (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.

So, the result of the execution of a contract is a result that is separable from the activities of the contractor. The provision of a service does not imply a tangible, material result. The essence of the contract is the provision of a service (performing certain actions or carrying out a certain activity), and in the contract the essence is the transfer of the material result obtained as a result of the work to the customer.

... when providing services, only the actions (activities) of the contractor are subject to payment, and not the specific result for which the contract is concluded... Resolution of the Federal Antimonopoly Service of the Moscow District of March 11, 2010 No. KG-A40/15276-09

The provision of services does not lead to the emergence of a property right, does not create a new material object, and does not give rise to a right of use. In addition, the contractor cannot always guarantee the achievement of a positive result; this may be due, among other things, to the subjective, personal characteristics of the customer. This is typical, for example, when providing educational services.

The information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 29, 1999 No. 48 “On some issues of judicial practice that arise when considering disputes related to contracts for the provision of legal services” states that a contract for the provision of paid services can be considered concluded if it lists certain actions that the performer is obliged to perform, or certain activities are indicated that he is obliged to carry out. However, there is another position, for example, in the Resolution of the Federal Antimonopoly Service of the Ural District dated June 2, 2011 No. F09-2344/11 in case No. A60-32012/2010, Art. 783 of the Civil Code of the Russian Federation, general provisions on contracts and provisions on household contracts apply to an agreement for the provision of services for a fee, respectively, by virtue of Part 1 of Art. 708 of the Civil Code of the Russian Federation, the contract indicates the initial and final deadlines for the work. It turns out that, according to the stated position of the FAS, the condition on the period of completion of work (provision of services) is one of the essential terms of a contract of this type.

Essential terms of the contract for the provision of paid services (according to the Civil Code of the Russian Federation): subject of the contract, i.e. activities specified in the contract or actions that the contractor is obliged to perform

As for the terms of execution of the contract, the Civil Code of the Russian Federation does not establish any strict restrictions. The contract may stipulate both the start date of the activity and its end (or just the start). In practice, the term of execution of the contract is determined by agreement of the parties.

The basis for the fulfillment of obligations under a work contract, as follows from Art. 779 of the Civil Code of the Russian Federation, is the order of the customer. The current legislation does not contain mandatory norms regarding the content and form of such an assignment. IN real life There are cases when the parties enter into an agreement without such a building, i.e. The nature of the service, its volume and complexity is determined by the performer himself. There are cases when the customer’s “task” is drawn up in the form of a specific application, for example, in the case of booking hotel tickets; when providing medical services, the “task” may be determined by the condition of the customer (patient); there are often situations when the “task” is included in the contract itself.

• subject of the contract;
• terms of service provision;
• procedure for delivery and acceptance of services provided, incl. the document on the basis of which the customer wants to make acceptance;
• the possibility of unilateral refusal by the customer to fulfill the contract. It should be noted that according to the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 104, the customer’s refusal to fulfill the contract does not terminate the customer’s obligation to pay the contractor the necessary expenses that he incurred for services not yet provided until the customer’s unilateral refusal to fulfill the contract;
• ...services can be paid on the basis of the invoice... Resolution of the Federal Antimonopoly Service of the North Caucasus District dated July 27, 2010 in case No. A32-44893/2009
• payment procedure, if an advance is provided, then the procedure for its return;
• the moment of termination of the contract, for example, “the contract is considered terminated by the customer from the moment the contractor receives a letter about the loss of interest in the execution of the contract,” and not from the moment the parties sign the agreement to terminate the contract;
• quality of services (legal and contractual), including the purposes for which the result of the services/the services themselves will be used. It should be noted that the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 29, 1999 No. 48 states that when considering disputes related to payment for legal services provided in accordance with the contract, arbitration courts must be guided by the provisions of Art. 779 of the Civil Code of the Russian Federation, i.e. payment for legal services should not depend on a court decision;
...the conclusion that services are subject to payment in the absence of the customer’s signature on the documents proving the provision and acceptance of services contradicts the provisions of Chapter 39 of the Civil Code of the Russian Federation. Resolution of the Federal Antimonopoly Service of the Moscow District dated March 2, 2010 No. KG-A41/14892-09)

The Civil Code of the Russian Federation does not prohibit prepayment and does not prohibit leaving it with the contractor if the customer terminated the contract early or its validity period has expired... Resolution of the Federal Antimonopoly Service of the North Caucasus District of December 23, 2009 No. A63-5816/2009

• distribution of risks between the parties to the contract (who, if something happens, to what extent and how will compensate for losses incurred, the procedure and timing of these payments);
• the contractor's warranty obligations and warranty period (legal and contractual);
• the moment when payment obligations arise. According to the Civil Code of the Russian Federation, the obligation to pay for services under the contract arises from the date of acceptance by the customer of the services provided by the contractor, however, it is also possible to provide for the presence of additional documents for the emergence of an obligation to pay, for example, an invoice provided by the contractor, or, for example, “link” the moment of payment to the fulfillment of the contractor’s obligations under payment of penalties.
• liability of the performer and penalties (legal or contractual). Please note that the limitation of the contractor’s liability established by the parties to the contract for paid services does not contradict the law, and only the court can reduce the contractual amount of the penalty;
• the obligation of the contractor, along with providing the customer with the result of the service, to convey information regarding the operation or other use of the subject of performance;
• contract time;
• other conditions.

Main types of contracts:

1. Purchase and sale (Chapter 30 of the Civil Code of the Russian Federation)

- retail purchase and sale;

Goods supply;

Supply of goods for government needs;

Contracting;

Energy supply;

Property For Sale;

Sale of the enterprise.

2. Contract agreement (Chapter 37 of the Civil Code of the Russian Federation)

Under a contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver the result to the customer, and the customer undertakes to accept the result of the work and pay for it.

3. Paid provision of services (Chapter 38 of the Civil Code of the Russian Federation)

Under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to accept and pay for these services in the manner and within the terms stipulated by the contract.

Definition of a contract

clause 1.art. 420 Civil Code of the Russian Federation:

A contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations.

There is also the concept of a deal. This concept is broader than that of a contract. An agreement necessarily includes two or more persons entering into it. In the case of a transaction, this could be one person. A clear example of a transaction is a will. In a will, one person, the testator, expresses his will in writing or orally. Upon the occurrence of certain events, this will is executed. This is one of the types of transactions.

The principle of freedom of contract

clause 1. art. 421 Civil Code of the Russian Federation:

Citizens and legal entities are free to enter into contracts.

Moment of conclusion of the contract

clause 1. art. 432 Civil Code of the Russian Federation:

An agreement is considered concluded if an agreement is reached between the parties, in the form required in appropriate cases, on all the essential terms of the agreement. If there are no essential terms in the agreement, such an agreement will not be considered concluded.

Methods of concluding an agreement

clause 1 art. 434 Civil Code of the Russian Federation:

An agreement may be concluded in any form provided for transactions, unless a specific form is established by law for agreements of this type. The classic version of the contract is a simple written form. There are contracts that require mandatory notarization. Law 223-FZ does not provide for such agreements. But if the parties wish to provide themselves with additional security, the supply agreement can also be certified by a notary. Such cases rarely occur in practice. There are contracts that are subject to mandatory state registration. For example, all contracts related to the movement of real estate, such as sale, exchange, gift, must be registered with Rosreestr. Such agreements are considered concluded from the moment of state registration. If for some reason the contract of purchase and sale, exchange, or donation of real estate does not go through state registration or was not entered into Rosreestr, then such an agreement is considered not concluded.

If the parties agreed to conclude an agreement in a certain form, it is considered concluded after giving it the agreed form, even if the law did not require such a form for contracts of this type.

Art. Art. 435 - 443 Civil Code of the Russian Federation

Conclusion of a contract by accepting the conditions set out in the offer

This is a classic way of concluding a contract. It consists in the fact that one party, for example, the buyer, sends conditions to the second party, for example, the seller, not necessarily in the form of an agreement, the main thing is that all essential conditions are sent (in the case of delivery, this is the subject of the contract, the name and quantity of the goods ). The offer, as a rule, indicates the method of its acceptance. For example, this could be a written response agreeing with the terms in the offer, or performing some legally significant action, for example, paying for goods, or any other action determined by the parties in the offer. If the other party accepts the offer, then this agreement will be considered concluded.

Essential terms of the agreement

Supply:

• Subject of the agreement(Clause 1 of Article 432 of the Civil Code of the Russian Federation). This is the most important essential condition of any contract. The subject of the contract must always be defined clearly and specifically. In the absence of this condition, the contract will be considered not concluded. The subject of the supply agreement is the implementation by the seller of actions aimed at delivering the goods into the ownership of the second party. The subject of the agreement does not have to be expressed in one paragraph or in one point. As a rule, very often the subject of the agreement follows from the essence of the agreement itself or is scattered throughout the text of the agreement.

• Condition about the name of the product(Clause 3, Article 455 of the Civil Code of the Russian Federation). The name of the product must be defined in the contract in any case. To minimize risks and controversial issues, it is recommended to specify the name of the product more specifically. As a rule, goods can be distributed according to species, generic and other characteristics. For example, if the agreement states that one party undertakes to supply the other party with a TV, then there is a risk that such an agreement will not be recognized as concluded, because there is no specific name of the product, namely, it should be written, for example, if we're talking about about the TV, what brand and model of TV should be supplied. This very often intersects with 223-FZ, when draft contracts and tender documentation are developed. Sometimes it happens that at the time of purchase it is not possible to clearly determine the name of the product, but if possible, you should still try to determine the name of the product in order to avoid controversial issues in the future.

• Condition on the quantity of goods(Clause 3, Article 455, Article 465 of the Civil Code of the Russian Federation). One of the mandatory conditions of the supply contract. Quantity is usually expressed in pieces. May also be expressed in units of mass, kilograms, liters, depending on what is being supplied. If the parties do not agree on a condition on quantity, then the contract will be considered invalid, since it is impossible to deliver goods whose quantity is unknown.

As a rule, in practice, the condition on the name of the product and the condition on the quantity of the product are reflected in specifications, applications, and other documents. Very often, under supply contracts, these conditions are reflected in the invoices. The arbitration court indicated that such a definition of essential delivery conditions is permissible. However, if the contract states that the name and quantity of the goods are determined in invoices, invoices, and other documents, then in these documents, which define the essential conditions, there must be a reference to the contract in pursuance of which the delivery is made. If we take, for example, the TORG-12 invoice, then at the top there is a column “Base”, that is, the basis according to which the delivery is carried out is indicated here. Let's consider a situation where the consignment note is not linked to any document, for example, to a contract. In this case, when the name, quantity and assortment of goods are defined in the bill of lading, that is, all essential conditions are contained and, based on the document, there is a full understanding of what is being delivered, to whom, where, at what price, then such an agreement will be recognized as a one-time supply , the Supreme Arbitration Court also spoke on this topic. The only difference between the situations when the consignment note is linked to the contract, and when the consignment note is not linked to the contract, is that in the first case it is possible to apply the terms of the contract in terms of short delivery of goods, in terms of penalties, penalties, or other conditions provided for by the contract . If the delivery was made exclusively on the basis of a bill of lading, or several deliveries were made on the basis of bill of lading, then in resolving controversial issues it is necessary to be guided by the Civil Code of the Russian Federation, which also defines the moments of reclaiming goods, presenting demands, and refusing the contract in case of improper performance.

Not essential:

Condition on the delivery time of the goods. According to Art. 327 of the Civil Code of the Russian Federation, if the contract does not specify the deadline for fulfilling the obligation, it must be fulfilled within a reasonable time from the receipt of the relevant notice. A reasonable period is defined as 7 calendar days from the date of receipt of the relevant request. So, in a situation where the delivery date is not specified in the contract and it is not clear how to proceed when the money has already been paid and the goods have not been delivered, you need to send a notification in writing to the counterparty in any form that the goods must be delivered before a certain date . From the moment the counterparty receives the specified notification, the seven calendar day report will begin. If after seven calendar days the delivery of the goods has not been carried out, then the counterparty is considered to have violated the terms of the contract in relation to the delivery time. Despite the fact that the Civil Code provides for such a situation, it is better to indicate the delivery time directly in the contract. It is also possible to define the delivery date by specifying events that are bound to occur. In this case, for example, if the contract states that the delivery period for goods is 30 days from the date of payment or advance payment, then it is possible to recognize the condition of the delivery period as not concluded, since payment for various reasons may not happen and, therefore, such an event will not occur. fits the definition of an inevitable event.

Condition on the price of the goods (clause 1 of article 485, clause 3 of article 424 of the Civil Code of the Russian Federation). If the price of the goods is not specified in the contract, then the parties will be guided by Art. 424 of the Civil Code of the Russian Federation when resolving controversial issues, in this case the cost of the goods will be determined based on market value of the goods supplied in the region where the delivery takes place.

When concluding an agreement, the parties enter all the conditions that are essential for them into the agreement, for example, delivery methods, delivery address, liability for the goods, etc.

Contract:

• Subject of the agreement (clause 1 of article 432 of the Civil Code of the Russian Federation)

• Conditions on the content of work (Articles 702, 703 of the Civil Code of the Russian Federation). This is a condition in which the parties prescribe the procedure for performing work and its volume, that is, what kind of work is performed, in what way, from what materials, who provides materials for the work, where the work is performed - at the location of the contractor or at the location of the customer, the number of works, Expected Result.

• Conditions on the initial and final deadlines for the completion of work (Article 708 of the Civil Code of the Russian Federation). This condition is significant not only in accordance with the Civil Code of the Russian Federation, but also in connection with the resolution of the Supreme arbitration court. If deadlines are set by specific dates, then it is very difficult to challenge them. On the other hand, when the terms are formulated as “30 days from the date of payment of the advance by the customer,” then such a period is easy to challenge, since the payment of an advance does not fall under the definition of an inevitable event.

In the Civil Code of the Russian Federation there is also the concept of an intermediate period. This condition is not essential, however, in the case of large and long-term projects, for example, the construction of a multi-storey building, or any other project associated with a long process of work, it is better to specify in the contract intermediate deadlines for the completion of work in order to control the activities of contractors and the possibility of obtaining reporting documents for each stage of the work, for example, signing the relevant acts of acceptance of work. If this is not done, then in the event of the contractor’s dishonesty, some defects in the work will ultimately be hidden and cannot be identified upon acceptance of the final result, and subsequently this may have a serious negative impact on the operation of the facility.

The price of the contract is also not an essential condition in accordance with the Civil Code of the Russian Federation, however, practice shows that it is better to determine the price of the work in the contract upon signing. This allows you to avoid many disputes and conflict situations in the future during the execution of the contract. Moreover, according to 223-FZ and regulations of the Federal Antimonopoly Service, the price of the contract must be determined at the conclusion of the contract.

Paid provision of services:

• Subject of the agreement (Clause 1 of Article 432 of the Civil Code of the Russian Federation)
• Conditions on the list, types of services, as well as on the actions performed (clause 1 of Article 779 of the Civil Code of the Russian Federation). This condition is very similar to the condition of the description of work in the contract. That is, the contract specifies what specific legal or actual actions the executor of the contract must perform.

What is the difference between a contract and a contract for the provision of services? The main difference, according to Russian legislation, is the result. In the case of a contract, the customer, as a rule, receives some materialized result. For example, a contract for the construction of a fence. The customer ultimately receives the result in the form of a fence that can be touched and assessed visually, that is, it is something tangible. Under a contract for the provision of services for a fee, as a rule, there is no material result. The process of fulfilling the contract is important to the customer. As a result of the contractor performing the actions provided for in the contract, the customer receives intangible benefits. For example, the customer may receive knowledge, new information, or something intangible as a result.

There are often mixed types of contracts, for example, a supply contract with a work contract. An example of such an agreement would be a situation where one party not only supplies goods to the other party, but also undertakes to perform work using these goods. In this case, in terms of the supply of goods, this agreement is regulated by the articles of the Civil Code of the Russian Federation related to the supply of goods, and in terms of the performance of work, this agreement will be regulated by the norms of the Civil Code of the Russian Federation on contracting. It also often happens that a supply agreement borders on a contract for paid services. The Civil Code of the Russian Federation directly states the right to enter into mixed types of contracts.

Change and termination of the contract

Changes and termination of the contract are possible by agreement of the parties, unless otherwise provided by agreement or law (Article 450 of the Civil Code of the Russian Federation).

Change and termination of the contract when significant violation agreement of one of the parties (clause 2 of Article 450 of the Civil Code of the Russian Federation). A significant breach of a contract is its improper performance or non-performance at all. All conditions relating to improper execution of the contract or its non-fulfillment must be specified in the contract. This helps to significantly minimize risks.

Change and termination of the contract in connection with with a significant change in circumstances(Article 451 of the Civil Code of the Russian Federation). In this case, we mean such events or actions of third parties, upon the occurrence of which the parties will be forced to change the terms of the agreement. For example, an increase in the tax rate. If at the conclusion of the agreement the rate was 18%, and during the validity of the agreement changes were made to the Tax Code of the Russian Federation that change the VAT interest rate from 18% to 20%, then this is considered a circumstance caused by the actions of third parties, in particular the state that may become the basis for making changes to the contract or terminating the contract. Such a change in circumstances must be significant for both parties to the contract. Only in this case can such circumstances influence the change/termination of the contract.

Other grounds, set out in the agreement (Article 450 of the Civil Code of the Russian Federation).

The procedure for amending the contract is prescribed in the text of the contract itself.

According to the general rule (Article 452 of the Civil Code of the Russian Federation), an agreement to amend or terminate a contract is made in the same form as the contract.

Another option is in judicial procedure. This is possible only after receiving a refusal from the other party to the proposal to change or terminate the contract or failure to receive a response within the period specified in the proposal or statutory or by agreement, and in its absence - within thirty days (clause 2 of Article 452).

Refusal to conclude a contract

Federal Law 223-FZ regulates the relationships between the parties that arise when purchasing goods, works, and services. Procurement procedures may be competitive or non-competitive.

When conducting competitive procedures, when any party refuses to enter into a contract based on the results of bidding ( auction or competition), then the other party has the right to legally force an unscrupulous counterparty to enter into an agreement, as well as demand compensation for losses caused by evasion of its conclusion (Article 448 of the Civil Code of the Russian Federation). Damages may include damages and/or compensation for lost profits.

In other cases (non-competitive procurement procedures), refusal to conclude a contract is permitted on the grounds provided for in the law and in the contract.

The customer, renouncing the contract, must reimburse the contractor for all actual expenses incurred. And the contractor, terminating the contract, is obliged to compensate the customer for losses incurred. Losses are a more capacious and broader concept than expenses. Expenses are money that was spent on intended purpose exclusively within the framework of the concluded agreement. Losses are considered direct damage and lost profits. This reveals a certain inequality between customers and performers when refusing to conclude a contract.

Questions from listeners

Question: Are lease agreements, lending agreements, and insurance agreements covered by 223-FZ?

Answer: The question is controversial. But not so long ago, a representative of the central office of the Federal Antimonopoly Service of the Russian Federation spoke on this topic, confirming that these types of contracts fall under the scope of 223-FZ. Thus, there is hope to soon receive written clarification on this issue from the authorized bodies.

Question: Is it possible to conclude trilateral agreements and additional agreements to them?

Answer: Yes, it's possible.

Question: Failure to comply with the written form does not entail the invalidity of the contract, but only deprives the parties of the right to refer to witness testimony?

Answer: Absolutely right.

Question: Is it necessary to specify the amount of the contract and on the basis of what legislation?

Answer: According to Art. 423 of the Civil Code of the Russian Federation, price is not an essential condition of the contract, therefore it is not necessary to register it. But at the same time, it is always better to indicate it, since a dispute may subsequently arise regarding the order of its determination in the case where it is not indicated.

Answer: Yes, it's possible.

Question: Is it possible to conclude an agreement for stationery for 99 thousand rubles and indicate in the subject of the agreement “purchase of stationery”, without specifying what kind of stationery is being purchased.

Answer: It is possible to do this, but it carries certain risks. Since the concept of stationery is very broad, it is not clear from this definition what exactly is being purchased, which can lead to disputes in the future. Such an agreement can be considered invalid in the absence of specifications for it.

Question: The contract states: “The supplier undertakes to supply, and the customer to accept and pay for, product X on the terms established by this contract, in the quantity, quality, and assortment specified in one-time applications. This is not true?

Answer: It's right. In this case, the method of ordering the goods is defined here. If the application specifies all essential conditions, then delivery will be carried out specifically according to the application.

Question: Why would a contract for the supply of spare parts be invalid if the subject of the contract is any spare part at the customer’s request, the cost is according to the current price list, and total amount indicated specifically, for example, 100 thousand rubles?

Answer: The subject of the contract cannot be “any spare part”; the subject of the contract can be formulated as “supply of spare parts at the customer’s request.” It is assumed that the request must indicate all identifying characteristics of the product, such as name, quantity, assortment. If these conditions are met, then such an agreement has legal force.

Question: What is the difference between delivery and purchase and sale?

Answer: A supply agreement is a type of purchase and sale agreement, the difference is the subject composition and purpose of the agreement.

Question: If the supply agreement has a volume, but no price, the price is determined by the market price on the day of delivery, is such an agreement concluded?

Answer: Yes, if the contract clearly indicates the name and quantity of the purchased goods.

Question: How to determine the amount of a contract if, when determining the scope of work, it is difficult to predict what hidden defects will be encountered. We have cases where additional work amounts to half of the original competition amount.

Answer: Regarding the determination of the scope of work, economists, engineers, and cost estimate specialists should be involved in the work. The presence of hidden defects (if any) will not affect the cost of the work, since they can only be identified after the work has been completed.

Question: The supply contract has expired, the product has not been selected, and the supplier does not want to extend the contract because the price has changed. What to do?

Answer: If the contract was not automatically extended and the validity period under it expired, but the obligations were not fulfilled for some reason, then Article 309 of the Civil Code of the Russian Federation states that obligations must be fulfilled properly and the parties who, at the time of expiration of the contract, have something or have not fulfilled this agreement, they will have to fulfill it.

Question: Is the purchase of train tickets for artists going on tour considered a purchase?

Answer: Yes, it is, if the company buys these tickets.

Answer: If you read Law 223-FZ and by-laws literally, then there is no need to post anything in this case. The law requires that the procurement be included in the plan, that a notice, documentation, and a draft contract be published on the website. Further, the law prescribes that in the event of changes in the terms of the contract (price, volume, performance period), in comparison with those specified in the final protocol, it is necessary to publish information about amendments to the contract. Termination of a contract is not essentially a change. In order to insure yourself in such a situation, you can publish a protocol on the website indicating that the contract has been terminated. There is no need to remove it from the report, since the contract was concluded one way or another.

Question: Is it necessary to indicate in the preamble of the contract that it was concluded under 223-FZ?

Answer: No, not necessarily.

Question: We concluded an agreement at the maximum contract price, maximum volume, and indicated the price per unit in the assortment. If the unit price changes during the term of the contract, is it necessary to make an interim additional agreement to change the unit price?

Answer: It is necessary if the contract did not provide in advance for the possibility of a unilateral change in price by the counterparty.

Question: Is it necessary to post information on the conclusion of a contract based on the results of a request for quotations or an electronic auction on the official website?

Answer: Currently there is no such obligation. However, from January 1, 2015, a legal provision will come into force, according to which it will be necessary to maintain a register of concluded agreements on the website.

Question: Are building maintenance services covered by 223-FZ?

Answer: If these are public services, then the purchase falls under the scope of 223-FZ.

Question: GAU needs to make a purchase for 800 thousand rubles, who should do this - the ministry or the institution itself?

Answer: By default, autonomous institutions conduct all purchases in accordance with 223-FZ. There is a list of exceptions. If an institution falls under Article 15 of Federal Law No. 44-FZ, then in this case the purchase is made in accordance with 44-FZ.

Question: Is it possible to extend contracts?

Answer: Possible. There are two types of contracts, the first type - those contracts that were concluded before the entry into force of 223-FZ, the second type - contracts concluded during the validity of 223-FZ on the basis of the procurement regulations. If a contract of the first type is extended, then this is considered a new purchase, which is included in the procurement plan, for which a notice is published and which is subsequently included in the report as a purchase from a single supplier. In this case, you need to pay attention to the compliance of this purchase with the standards provided for by the procurement regulations regarding procurement from a single supplier. If the extension concerns a contract of the second type, then this will be considered a change to the current contract, although some regulatory authorities still consider this a new purchase from a single supplier. In any case, the possibility of extension, accompanied by an increase in the contract amount, must be provided for in the procurement regulations. If the procurement regulations do not stipulate the possibility of making changes to contracts, then this cannot be done.

Question: An agreement has been concluded with sole supplier up to one hundred thousand rubles per quarter for the supply of products, they included it in the report, at the end of the quarter they did not select the volume, they did additional agreement about a decrease in the volume of supply, the amount of the contract decreased. How to reflect this in reports?

Answer: This is not reflected in the reports.

Question: Repair work, interior decoration of the building, amount less than one hundred thousand rubles. Is it possible to conclude an agreement with a single supplier without going through a procurement procedure?

Answer: Of course, it is possible if the organization has a published procurement regulation, which contains a clause that states that if the purchase cost does not exceed one hundred thousand rubles, then the purchase can be made from a single supplier.

Question: How to correctly apply the procedure for selecting suppliers to purchase goods according to daily needs without additional requests, but on the principle of who has the lowest price at the moment?

Answer: Some organizations solve this issue in the following way. This method is included in the procurement regulations as a method of competitive procurement, and then there are two options. The first is that each purchase is considered a separate purchase, included in the report, etc. Or the second option - a so-called umbrella purchase is made, this is when either the volume is divided proportionally between suppliers, or the volume changes during the execution of the contract. For example, there are 44 suppliers, each has an agreement for a certain volume, then every day you can choose with whom to work. Rostelecom has such experience, you can familiarize yourself with it.

Question: What to do if the purchase was initially up to one hundred thousand rubles, and at the end of the contract the amount exceeded one hundred thousand rubles?

Answer: It is better to monitor such contracts so that the amount under them does not exceed one hundred thousand rubles. Otherwise, this agreement must be included in the plan, report, etc. If such a case is isolated, you can try to withdraw the excess amount into a separate contract, making it a separate purchase.

Question: We are going to conclude an agreement under 223-FZ with a single supplier for 850 thousand rubles for the supply of veterinary forms strict reporting. The justification was written, changes were made to the procurement plan, the regulations do not require posting information about the concluded contract in a unified information system. Now we calmly sign the agreement and take no further action?

Answer: After the purchase is included in the plan, a notice, documentation and draft contract must be published on the official website, regardless of what is written in the regulations. After concluding the contract, you need to enter the purchase into the report. And, indeed, there is no need to post information about the concluded agreement.

Question: Why do agreements concluded before the entry into force of 223-FZ require a notification to be generated and published on the official website? The law says nothing about how to work with such contracts.

Answer: There is a letter from the Supreme Arbitration Court No. 59, which states that the extended agreement is essentially a new agreement concluded on the same terms. Thus, if the agreement was concluded before the entry into force of 223-FZ, and the agreement is still in effect, no new financing is taking place under this agreement, then there is no need to report it anywhere. As soon as additional financing appears that was not initially included in the contract amount, this is considered a new purchase, which is made in accordance with 223-FZ.

Question: An additional agreement to the contract is new purchase?

Answer: This is not always a new purchase; it may be a change to the current contract. But if the contract was concluded before the entry into force of 223-FZ, then this is considered a new purchase.

Question: How to determine that the customer is entering into an agreement with SMP? When concluding a contract, should the executor somehow determine that he is a small business entity?

Answer: At the moment, no one has an obligation to enter into agreements with small and medium-sized businesses. A resolution of the Government of the Russian Federation is expected, which will set limits on such agreements. There are two options for how a performer can report that he is an SMP. The first option is that the contractor can declare this when submitting a purchase application. The second option is that the customer can request supporting documents from the contractor, such as a balance sheet, an extract from the staffing table.

Question: Which organizations audit procurement regulations?

Answer: This service is paid and is carried out by procurement experts, including OTC-tender specialists.

Question: On the official website in the reports there is a line on NSR. Do these purchases need to be reflected in reports?

Answer: Yes, even before the issuance of a Government resolution regulating these purchases, and if subsequently the said resolution does not directly concern the organization, or if the organization does not carry out such purchases in principle, it is necessary to enter 0. If you do not publish the report, you may receive a fine for non-publication of information subject to publication on the official website.

Question: Is it necessary to include in the procurement regulations a clause on purchases from a single supplier of up to one hundred thousand, if 1.5 million rubles have already been prescribed?

Answer: One hundred thousand rubles is the threshold for publishing procurement information on the official website. In this situation, 1.5 million rubles is the threshold for purchasing from a single supplier. The threshold is quite high; regulatory authorities may have questions about limiting competition.

Question: If the plan includes a purchase, but in fact it was decided not to carry it out, should it be removed from the plan?

Answer: Yes, it needs to be removed. According to Government Resolution 932, changes to the plan can be made. Details of this process must be specified in the procurement regulations.

Question: We are preschool autonomous institution. The procurement regulations stipulated purchases from a single supplier of up to 400 thousand rubles per quarter. Should we still bargain if we are within this amount?

Answer: From the point of view of 223-FZ, in this situation there is no need to bargain. From point of view general activities company, cost efficiency Money It may be useful to carry out a minimum selection of price proposals.

Federal Law No. 505 introduced many changes to the procurement process in accordance with Federal Law No. 223. The innovations also affected the period for concluding a contract based on the results of the procurement procedure. Until July 1, 2018, Federal Law No. 223 did not indicate specific terms for signing the contract between the customer and the winning counterparty for the supply of purchased goods (works or services). The customer was guided, first of all, by his Procurement Regulations, in which he prescribed, at his discretion, the deadlines for concluding the contract resulting from the procurement.

In accordance with Art. 18.1 Federal Law No. 135 appeal against actions (inaction) of the auction organizer, operator electronic platform, competition or auction commission to the antimonopoly authority in the manner permitted no later than ten days from the date of summing up the results of the auction or, if the results of the auction are to be posted on a website on the Internet, from the date of such publication. With the exception of cases provided for by Federal Law No. 135. However, customers often entered into contracts with the winners earlier than the above-mentioned period, arguing that this was due to the production necessity of the enterprise. In this regard, suppliers (performers, contractors), whose rights and legitimate interests were infringed during the procurement process, did not always have the opportunity to timely file a complaint about the customer’s actions with the antimonopoly authority.

Case Study

The Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation, having considered the cassation appeal of the antimonopoly body against the decision of the arbitration court, came to the conclusion that “the establishment in the Procurement Regulations of the period for concluding a contract based on the results of the procurement (less than 10 days), which does not take into account that enshrined in the Procurement Law and The Law on the Protection of Competition, the procedure for administrative control by the antimonopoly authority, actually excludes the use of operational measures provided for in Art. 18.1 of the Law on Protection of Competition, deprives the filing of a corresponding complaint of any legal meaning, and is therefore directed against the rights of procurement participants.”

According to the changes that have entered into force in accordance with Part 15 of Article 3.2 of Federal Law No. 223, a contract based on the results of a competitive procurement is concluded no earlier than ten days and no later than twenty days from the date of posting in the Unified Information System the final protocol drawn up based on the results of a competitive procurement. If it is necessary for the customer’s management body to approve the conclusion of a contract in accordance with the legislation of the Russian Federation or in the event of an appeal to the antimonopoly authority against the actions (inaction) of the customer, the competitive procurement commission, or the operator of the electronic site, the contract must be concluded no later than five days from the date of said approval or from the date of the decision of the antimonopoly authority based on the results of an appeal against the actions (inaction) of the customer, the competitive procurement commission, or the operator of the electronic site.

Customers must reflect these innovations in their Regulations, without going beyond the established time frame for concluding a contract based on the results of the procurement procedure. The effect of the Regulations should be aimed at ensuring the implementation of rights to protection in an administrative manner by establishing legal rules for concluding contracts based on the results of procurement procedures.

The sequence of actions when concluding a contract, both on the part of the customer and on the part of the supplier (contractor, performer), should be reflected in the procurement organizer in the Regulations, as well as in the procurement documentation of a particular procedure. The process of signing the contract will depend on how detailed and clear the customer writes down such information. Having become familiar with the procedure for its execution, the winner of the purchase will be able to fulfill all obligations to conclude the contract in a timely manner. In any case, the winner of the purchase, in order to confirm the transfer of the contract to the customer, must receive a notification of its delivery to the addressee, or personally deliver it to the purchase organizer, putting the appropriate mark.

Often, when concluding a contract, the customer requires the supplier (contractor, performer) to provide the necessary package of documents. In this case, to optimize the execution of the contract:

The customer should provide in the Regulations and in the procurement documentation a list of required documents, as well as the rules for their provision;

The supplier should carefully study the list of requested information and properly prepare the necessary documents.

When purchasing goods, works or services in electronic form, the terms for signing an agreement under Federal Law No. 223 are the same as during the usual procedure (taking into account the innovations that have come into force). Suppliers (contractors, performers) should only take care in time to obtain accreditation on the electronic trading platform (hereinafter referred to as ETP), where the procurement procedure is carried out, as well as to obtain a person authorized to act on behalf of the competitive procurement participant in electronic form.

Currently, the vast majority of purchases are carried out electronically on the ETP. This type implementation of procedures is convenient for both the customer and the supplier.

The following advantages can be highlighted:

Reducing the time for preparing, signing and sending documents;

Concluding an agreement without visiting the counterparty;

Systematization and safety of documents, etc.

Customers are not always able to provide the exact quantity of purchased products. If, during the conclusion and execution of a contract, the quantity, volume, price of purchased goods, works, services or the terms of execution of the contract change compared to those specified in the final protocol, no later than ten days from the date of amendments to the contract, information is posted in the Unified Information System on amending the contract indicating the changed conditions (Part 5 of Art. Federal Law No. 223). At the same time, the above-mentioned procurement law does not contain the maximum value for changing the contract compared to Federal Law No. 44 (see Article 95 of the Law on the Contract System).

Based on the above, the following conclusions can be drawn:

Customers must reflect in the Procurement Regulations the changes that have entered into force, including those relating to the timing of the contract;

The amendments made to Federal Law No. 223 regarding the period for concluding a contract based on the results of the procurement are aimed at ensuring the possibility of administrative appeal by participants against the actions (inaction) of the organizer of the procedures;

Both the customer and the procurement participant should follow the procedure for concluding the contract, prepare and send the necessary documents to each other on time;

The terms for concluding a contract when purchasing electronically are the same as during the usual procedure;

If necessary, the supplier (contractor, performer) and the customer can enter into an additional agreement in the event of a change in the quantity, volume, price of purchased goods, works, services or terms of the contract compared to those specified in the final protocol, promptly posting information about this in the Unified Information System.

Current auctions

Name and number

Customer

Accepting applications

price, rub.

Sending a request for clarification by the participant. Its role and significance in the procurement process

Legal regulation of procurement: procedural control or economic efficiency?

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