Conclusion of an additional agreement on changing the source of funding. Procurement funding sources

Dear experts! since the indication of the source of financing is mandatory in the agreement (contract) in accordance with the letter of the Ministry of Economic Development of the Russian Federation dated December 29, 2014 No. D28I-2845, then how should this be formulated? Please provide a sample or example, if possible. Or, in the contract, indicate, for example, "source of funding - TFOMS funds", and in case of changes during the year to another source or the introduction of additional sources - budget funds or own funds institutions, conclude an additional agreement on changing the source of funding? Wouldn't this be contrary to the provisions of Law 44-FZ? There are no materials of law enforcement practice for contracts concluded in accordance with Law 44-FZ. How to form the phrase: "Payment under the contract is made from the Customer's personal account in a non-cash way at the expense of funds ...?". Our lawyer wrote a phrase, but it is somehow clumsy and personally not very clear to me. Thank you.

Answer

It is advisable to provide for the possibility of changing the contract or mixed financing in the contract. The wording may be as follows: “During the execution of the contract, it is possible to change the source of financing from a subsidy to income from other income-generating activities, or mixed financing from the above sources.”

On the issue of changing the terms of the contract in terms of clarifying the source of financing (if this possibility was not specified in the contract), there are 2 positions. The institution must independently decide which of the following positions to adhere to.

1 position: there is a letter explaining the position of the Ministry of Economic Development of Russia during the period of the law 94-FZ. We believe that these explanations can be applied at the present time.

If during the execution of the contract only the BCC, according to which payment was (or should be) made, has changed, then the customer should make changes to the information about the contract. In this case, there will be no violation, since the rest of the information about the contract (subject of the contract, volume, price of the contract) remained unchanged. Such clarifications are given in the Letter of the Ministry of Economic Development of the Russian Federation dated 07.09.2011 N D28-328.

In addition, there is an opinion of the judges that the source of financing should not be attributed to the terms of the contract, since it does not affect the rights and obligations of the parties under it. Arbitration courts consider it possible to conclude additional agreements to contracts if it is required to change the order of financing when placing an order by bidding (Resolutions of the Federal Antimonopoly Service of the Central District dated January 18, 2011 No. F10-6260 / 2010, the Federal Antimonopoly Service of the Volga District dated May 25, 2011 No. F06-2096 / eleven).

2 position on the issue:

Formally, it is impossible to change the source of funding. Part 2 of Article 34, Part 1 of Article 95 of Law No. 44-FZ of 04/05/2013 it is stipulated that the contract is concluded under the conditions stipulated in the notice of procurement, in the documentation and changes can be made in a limited number of cases.

According to Article 42 of the Law 44-FZ, the notice of the purchase must contain information about the source of funding for the order. The fact that the customer has the right to change information about the source of financing is not mentioned in Article 95 of Law 44-FZ. Therefore, if initially the notice did not state the possibility of paying for the contract at the expense of extra-budgetary funds, then it is impossible to make changes to an already concluded contract. This means that paying at the expense of the above funds will be unlawful.

Konstantin Edelev, expert of the State Order System

From August 14, 2019, the procedure for calculating fines under 44-FZ was changed: the requirement for a fixed amount was removed, and the penalty for SMP and SONO was reduced. In the article you will find everything actual rules. Working with a penalty will be simplified by examples of wording and arbitrage practice.

How can the customer change the terms of the contract

Dilyara Bashirova, Deputy Head of the State Order Placement Control Department of the Federal Antimonopoly Service of Russia

Law No. 44-FZ establishes a strict procedure for changing the essential terms of a concluded contract. Therefore, if the customer has a need to change them, he needs to remember in which cases this can be done and in which it cannot.

In what cases to change the concluded contract

By general rule parties to the contract are not entitled to change it essential conditions, but there are a number of exceptions. The parties have the right to change the essential terms of the contract by agreement of the parties, if:

1. It is necessary to reduce the price of the contract without changing the quantity of goods, the volume of work or services provided for by the contract, their quality and other conditions of the contract.

2. The customer proposed to increase or decrease the quantity of goods, work or services provided for by the contract by no more than 10 percent. In this case, the parties, by agreement and taking into account the provisions of the budgetary legislation of Russia, have the right to change the price of the contract in proportion to the additional quantity of goods, volume of work or service based on the price of a unit of goods, work or service established in the contract, but not more than 10 percent of the contract price.

When reducing the quantity of goods, volume of work or service provided for by the contract, the parties to the contract are obliged to reduce the price of the contract based on the unit price of the goods, work or service.

The price of a unit of additionally delivered goods or the price of a unit of goods in case of a decrease in the quantity of goods supplied under the contract must be determined as the quotient of dividing the original price of the contract by the quantity of such goods provided for in the contract.

Attention: it is possible to change the terms of the contract specified in paragraphs 1 and 2 if the customer is in the contract and the procurement documentation, and when purchasing from sole supplier(contractor, performer) - provided for such an opportunity in the contract.

Example: how to increase a certain type of work indicated in the estimate

The total volume of land works (excavation) - 1000 cubic meters. m.

The cost of land works - 10,000.00 rubles.

The cost of all works (contract price) - 90,000.00 rubles.

The cost per unit (per 1 cubic meter) of land works is 10 rubles per cubic meter. m (10,000 rubles: 1000 cubic meters \u003d 10 rubles / cubic meters).

The volume of land works can be increased by no more than 10 percent or 100 cubic meters. m (1000 cubic meters × 10% = 100 cubic meters).

The price of the contract can be increased by no more than 10 percent or 9,000.00 rubles. (10% × RUB 90,000.00).

Calculation of the increase in land works: 1000 cubic meters. m × 10% × 10 rubles / cu. m = 1000.00 rubles.

The example shows that with an increase in the volume of land work by no more than 10 percent, the price of the contract increases by 1000.00 rubles.

This will increase the amount of work on other types of work in the estimate, but not more than 10 percent. The price of the contract also should not be increased by more than 10 percent or 9,000.00 rubles.

If the customer is a state or budgetary institution and he does not have limits for increasing the price, then he is not entitled to increase the scope of work and the price of the contract by 10 percent (Article 34 of the Budget Code of the Russian Federation).

3. The price of a contract concluded to meet federal needs for a period of at least three years equals or exceeds the price established by the Government of the Russian Federation, and due to circumstances beyond the control of the parties, execution of the contract is impossible without changing its terms. The price for this situation is:

40 million rubles - for a contract that includes the performance of work on conducting clinical trials of medicinal products for medical use (clause 1 of Resolution No. 1186);
10 billion rubles - for other contracts concluded to meet federal needs (clause 1 of Decree No. 1186).

Changes are made to the contract based on the decision of the Government of the Russian Federation.

4. The price of a contract concluded to meet the needs of a constituent entity of the Russian Federation for a period of at least three years equals or exceeds the amount of the price established by the Government of the Russian Federation, and due to circumstances beyond the control of the parties, execution of the contract is impossible without changing its terms. The price for this situation is 1 billion rubles. (Clause 1 of Decree No. 1186).

Changes are made to the contract based on the decision of the supreme executive body state power subject of the Russian Federation.

5. The price of a contract concluded to meet municipal needs for a period of at least one year equals or exceeds the price set by the Government of the Russian Federation, and the execution of the contract due to circumstances beyond the control of the parties without changing its terms is impossible. The price for this situation is 500 million rubles. (Clause 1 of Decree No. 1186).

Changes are made to the contract based on the decision of the local administration.

6. Regulated prices (tariffs) for goods, works, services have changed in accordance with Russian legislation.

On this basis, for example, the parties may change the price of the contract concluded on the basis of paragraphs 8, 22 of part 1 of Article 93 of Law No. 44-FZ.

7. For the customer - a state-owned institution (not a budgetary one, but a state-owned one) as a recipient of budgetary funds, the previously adjusted limits of budgetary obligations were reduced (clause 6, article 161 of the Budget Code of the Russian Federation). In this case, the customer agrees with the supplier (contractor, performer) new terms of the contract, including the price and (or) terms of its execution and (or) the quantity of goods, scope of work or services.

The reduction in the quantity of goods, the volume of work or services with a decrease in the price of the contract is carried out in accordance with the methodology approved by the Decree of the Government of the Russian Federation of November 28, 2013 No. 1090.

If the supplier (contractor, performer) does not agree to change the term of the contract or reduce the price of the contract without reducing the number of goods, scope of work or services, then the customer agrees with him the terms of the contract in terms of reducing the number of goods, scope of work or services (clause 2 of Resolution No. 1090).

The customer decides to change the contract due to the reduction of the limits of budgetary obligations based on:

proportionality of the change in the price of the contract and the quantity of goods, volume of work or service (part 3 of article 95 of Law No. 44-FZ);
the need to fulfill, as a matter of priority, the obligations arising from the contract, the subject of which is the supply of goods necessary for normal life support (including food, means for providing an ambulance, including an ambulance specialized, medical care in an emergency or urgent form, medicines, fuel), and (or) for which the supplier (contractor, performer) fulfilled the obligations (part 4 of article 95 of Law No. 44-FZ).

8. The contract is concluded with a foreign organization for the treatment of a Russian citizen outside its territory. The price of the contract can be changed if the list of services related to the treatment of a Russian citizen is increased or decreased for medical reasons.

Attention: paragraph 8 can be applied only if such a possibility was provided for in the contract with a foreign organization.

9. By agreement between the customer and the supplier (contractor, performer), goods are delivered, work is performed, services are provided, quality, technical and functional characteristics (consumer properties) which are improved in comparison with the quality and corresponding technical and functional characteristics specified in the contract.

If the sand grade is improved in its characteristics compared to the sand grade contained in the concluded contract, and the quality of work will not deteriorate when replacing the sand, then the replacement of the sand grade is possible in accordance with this basis.

The exception is goods originating from foreign countries, works, services, respectively, performed, rendered foreign persons, in respect of which the Government of the Russian Federation or the Ministry of Economic Development of Russia has established restrictions (part 7 of article 95, part 6 of article 14 of Law No. 44-FZ). They establish cases in which the customer is not entitled to replace the goods or the country (countries) of origin of the goods. These restrictions are set out in the following rules:

paragraph 3(1) of the Decree of the Government of the Russian Federation of February 5, 2015 No. 102 “On restrictions and conditions for the admission of certain types of medical devices originating from foreign countries for the purposes of procurement for state and municipal needs”;
clause 3 of Decree of the Government of the Russian Federation of November 30, 2015 No. 1289 “On restrictions and conditions for the admission of drugs originating from foreign countries included in the list of vital and essential drugs for the purposes of procurement for state and municipal needs”;
clause 13 of the order of the Ministry of Economic Development of Russia of March 25, 2014 No. 155 "On the conditions for the admission of goods originating from foreign countries for the purpose of procurement of goods, works, services to meet state and municipal needs";
paragraph 4 of the Decree of the Government of the Russian Federation of August 22, 2016 No. 832 "On restrictions on the admission of certain types food products originating from foreign countries for the purposes of procurement for state and municipal needs”;
clauses 9, 10 of the Decree of the Government of the Russian Federation of September 26, 2016 No. 968 "On restrictions and conditions for the admission of certain types of radio-electronic products originating from foreign states for the purposes of procurement for state and municipal needs."

Changes made to the terms of the contract, the parties set out in an additional agreement. The customer places them in the register of contracts.

In 2016, the parties to the contract have the right, by agreement, to change the following conditions:

term of the contract;
contract price;
unit price of goods, works, services;
quantity of goods, volume of works, services.

For more details, see What features of the execution of contracts appeared in 2016.

Attention: non-compliance with the rules contract changes entails administrative responsibility

If the parties have changed the terms of the contract, including increasing the price of goods, works, services, and at the same time the possibility of such a change is not provided for by Law No. 44-FZ, then a fine threatens:

officials and individual entrepreneurs - in the amount of 20,000 rubles;
legal entities - in the amount of 200,000 rubles.

Such liability is established in part 4 of article 7.32 of the Code of the Russian Federation on administrative offenses.

The amount of the fine will increase if the illegal change resulted in:

additional spending of funds from the relevant budgets of the budget system of Russia or
a decrease in the quantity of supplied goods, the volume of work performed, services rendered to meet state and municipal needs.

In this case, the fine for an official, an individual entrepreneur and a legal entity will be double the amount:

additionally spent funds from the relevant budgets of the budget system of Russia or
prices of goods, works, services, the quantity, volume of which is reduced and which were the subject of the offense.

Such liability is established in Part 5 of Article 7.32 of the Code of Administrative Offenses of the Russian Federation.

Officials are understood as the heads of the customer and the supplier (contractor, performer), as well as individual entrepreneurs. Entrepreneurs are not mentioned in these compositions, but they are liable in the same amount as officials, since the Code of the Russian Federation on Administrative Offenses does not provide otherwise (Article 2.4 of the Code of Administrative Offenses of the Russian Federation).

Situation: is it possible to change the quantity of goods at the stage of concluding a contract in accordance with Article 95 of Law No. 44-FZ

No, the possibility of amending the terms of the contract on the basis of part 1 of article 95 of Law No. 44-FZ is provided for during its execution, that is, after its conclusion. The contract must be concluded on the terms stipulated by the notice of procurement or an invitation to take part in determining the supplier (contractor, performer), procurement documentation, application, final offer of the procurement participant with whom the contract is concluded (if such documents are provided in accordance with Law No. 44 -FZ) (part 1 of article 34 of Law No. 44-FZ).

And only after the contract is concluded (signed by the parties), it is necessary to form an additional agreement on reducing the quantity of goods on the basis of subparagraph "b" of paragraph 1 of part 1 of Article 95 of Law No. 44-FZ, if the possibility of changing the terms of the contract was provided for by the procurement documentation and the contract.

Situation: whether to conclude an additional agreement and whether to extend the term of the contract? Unsuitable materials were included in the estimate and an examination of the estimate was carried out

Conclude an additional agreement on the suspension of work for the period of examination and replacement of unsuitable materials in accordance with Articles 716 and 750 of the Civil Code of the Russian Federation. A similar position is expressed in the resolutions Arbitration Court of the Moscow District dated February 2, 2016 No. Ф05-20281 / 2015, А40-33444 / 2015, the Fifteenth Arbitration Court of Appeal dated August 28, 2014 No. 15AP-10220 / 2014, А53-25124 / 2013 and the Ninth Arbitration Court dated August 1 2013 No. 09AP-22545/2013, A40-155524/2012.

Situation: is it possible to extend the term of the contract if at the stage of its execution the previously adjusted limits were reduced and this amount was included in the next year's limits. The purchase is carried out by a government agency

Yes, you can.

An extension of the term for the execution of the contract in connection with a decrease in the limits of budget obligations is possible with a decrease in the limits of budget obligations previously communicated to the state or municipal customer as a recipient of budgetary funds. This is stated by the Ministry of Economic Development of Russia in a letter dated July 29, 2015 No. D28i-2209 (clause 6, article 161 of the Budget Code of the Russian Federation, clause 6, part 1, article 95 of Law No. 44-FZ).

Situation: is it possible to change in the contract the order in which the parties resolve disputes

Yes, you can.

The parties are not entitled to change only the essential terms of the contract. But even for this rule there are exceptions, which are provided for in Article 95 of Law No. 44-FZ. Essential conditions are specified in Article 34 of Law No. 44-FZ. And the analysis of Article 34 showed that the procedure in which the parties resolve disputes does not apply to the essential terms of the contract (letter of the Ministry of Finance of Russia dated April 22, 2016 No. 02-02-15 / 24252).

Situation: is it possible to repeatedly increase or decrease the contract price within 10 percent of the original contract price, make several additional agreements

This possibility is not provided for by Law No. 44-FZ, but no prohibition has been established either. The customer has the right, on the basis of subparagraph "b" of paragraph 1 of part 1 of article 95 of Law No. 44-FZ, to repeatedly increase or decrease the contract price within 10 percent of the original contract price, to make several additional agreements.

Situation: how can the customer increase the price of the contract by overhaul

To increase the price of an overhaul contract, follow three steps.

Step 1. Change the estimate for those positions that need to be increased. After all, the estimate becomes part of the contract from the moment the customer confirms it. Change the total cost of the estimate in proportion to the additional amount of work, but not more than 10 percent. This is stated in the letters of the Ministry of Economic Development of Russia dated September 16, 2014 No. D28i-1866, dated August 18, 2015 No. D28i-2497.

Step 2 Conclude with a contractor. In the document, refer to the norm of the law and the clause of the contract, which states that the parties have the right to change the contract. For example, write like this:
“In accordance with section 4, clause 4.4 of the state contract and article 95 of the 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” section 4, clause 4.1 of the state of the contract read in the following edition…”.

Step 3 Enter the information that the price has changed in. Post an additional agreement there. Publish information in the register within three working days from the date when the parties entered into an additional agreement (part 3 of article 103 of Law No. 44-FZ).

The customer has the right to increase the cost of the contract for major repairs only under two conditions.

Condition 1. The customer proposed to increase the amount of products provided for by the contract. Then the price of the contract is changed in proportion to the additional quantity of production. You can increase the contract price by no more than 10 percent. Based on unit price. In this case, it is possible to increase only the amount of work that is provided for by the contract. You cannot add new work that is not in the estimate.

Condition 2. The possibility to increase the price is stipulated by the contract. For example, in a contract you wrote: "The volume of work to be performed in accordance with the terms of this contract may be increased or decreased for individual items of the estimate calculation by no more than 10 percent of the unit price of the volume of work established by this contract."

This is stated in paragraph 1 of part 1 of article 95 of Law No. 44-FZ, letter of the Ministry of Economic Development of Russia dated December 4, 2015 No. D28i-3634.

Situation: Is it possible to change the contract to correct errors in the auction documentation

The customer is not entitled to make changes to the draft contract. Otherwise, such actions of the customer will lead to a violation of part 1 of article 34, parts 2, 10 of article 70 of Law No. 44-FZ.

Officials of the customer will be brought to administrative responsibility on the basis of part 1 of Article 7.32 of the Code of the Russian Federation on Administrative Offenses (decision of the Federal Antimonopoly Service of Russia dated January 22, 2015 in case No. K-K-40/15/14).

If performance is impossible, then the customer and the supplier have the right to terminate it immediately after the conclusion of the contract by agreement of the parties on the basis of part 8 of article 95 of Law No. 44-FZ.

Situation: is the customer entitled to conclude an additional agreement to increase the price of the contract by 10 percent, if the contract was concluded as a result of the request for quotations

No, not right.

Firstly, the parties are not entitled to increase the price of the contract on the basis of subparagraph "b" of paragraph 1 of part 1 of Article 95 of Law No. 44-FZ without increasing the quantity of goods supplied, the volume of services provided (work performed).

Secondly, the possibility of changing the terms of the contract must be provided for in it and in the procurement documentation (with the exception of procurement from a single supplier) (clause 1, part 1, article 95 of Law No. 44-FZ). The procedure for determining a supplier (contractor, executor) by requesting quotations does not involve the formation of procurement documentation. Therefore, if the purchase was carried out by conducting a request for quotations, then the customer is not entitled to conclude an additional agreement to the contract that changes the quantity of goods supplied, the volume of services provided (work performed), as well as the price of the contract, on the basis of subparagraph "b" of paragraph 1 of part 1 of Article 95 of the Law No. 44-FZ.

This conclusion is confirmed by the position of the Ministry of Economic Development of Russia, set out in letters dated November 23, 2015 No. D28i-3411, dated October 2, 2015 No. OG-D28-12811.

Situation: Is it possible to increase the amount of work by 10 percent in relation to an already completed contract

No you can not. Based on the meaning of subparagraph “b” of paragraph 1 of part 1 of Article 95 of Law No. 44-FZ, the parties can change the terms of the contract only in the course of its execution (for example, before signing the acceptance certificate for all work, the act on the fulfillment of obligations under the contract). That is, if the contract has already been executed, its terms cannot be changed.

Situation: the customer has signed a contract for the construction of a school. IN project documentation he provided for the types of work on the fire protection of metal, but did not provide for these works in the concluded contract (estimate). Can an additional agreement include these works in the contract with an increase in the cost of the contract up to 10 percent

No, this possibility is not provided for in Law No. 44-FZ. Based on the meaning of subparagraph “b” of paragraph 1 of part 1 of article 95 of Law No. 44-FZ, “new works” cannot be added to the contract, since only the amount of work that is already provided for in the contract can be increased by 10 percent. At the same time, the price increase is also carried out on the basis of the price of a unit of work established in the contract.

For “new works”, the customer needs to make a new purchase. For example, if its amount does not exceed 100,000 rubles, then from a single supplier (clause 4, part 1, article 93 of Law No. 44-FZ).

Situation: based on the results of an electronic auction, an institution to meet the needs of a constituent entity of the Russian Federation entered into a contract for the provision of security services office space. However, later unforeseen expenses arose for other services required by the institution, resulting in a funding shortfall. Is it possible to reduce the price of the concluded contract

Yes, you can. In this situation, the customer has several options for possible actions:

Reduce the price of the contract without changing the scope of services (subparagraph “a”, paragraph 1, part 1, article 95 of Law No. 44-FZ).
Reduce the volume of services and the price of the contract by no more than 10 percent (subparagraph “b”, paragraph 1, part 1, article 95 of Law No. 44-FZ).
In these cases, the following conditions must be met:
- the customer provided for the opportunity to change the terms of the contract in the procurement documentation and the contract, and when purchasing from a single supplier (contractor, performer) - in the contract;
- the customer and the contractor have mutually agreed to such a change.
Reduce the volume of the service and the price of the contract, taking advantage of the opportunity provided for contracts in 2016.

To reduce the price of the contract in this situation is possible only by agreement of the parties.

Situation: is it possible to amend the terms of the contract by agreement of the parties in the amount of no more than 10 percent in relation to reducing the price of a unit of spare parts

No, the parties do not have legal grounds to amend the terms of the contract in terms of reducing the unit price of spare parts.

It is possible to make changes to the terms of the contract during its execution in the amount of no more than 10 percent only when the customer and the contractor had mutual consent to such a change, and the customer provided for in the procurement documentation and contract, and when purchasing from a single supplier (contractor, Contractor) - in the contract the right to change its conditions in relation to the quantity of goods, scope of work or service provided for by the contract, but not the number of spare parts.

Situation: is it possible to increase the volume of supplied products not for all positions, but only for some items

No you can not. The legislator unambiguously established the procedure for determining the unit price of additionally supplied goods, which does not provide for an increase in the quantity of goods for individual items in the event of the purchase of goods with different prices and different quantity according to the lists. You can increase the quantity of goods only with the targeted purchase of a specific product.

Otherwise, for example, the customer may buy an additionally supplied item from the list at a unit price ten times higher than the price at which the supplier originally supplied the required item under the contract.

Situation: is it possible to increase the volume of services under the contract for OSAGO

Yes, the customer can increase the volume of insurance services, provided that such an opportunity was provided for by the procurement documentation (subparagraph “b”, paragraph 1, part 1, article 95 of Law No. 44-FZ).

The control authorities may have questions about compliance with the proportionality of the contract price to the additional volume of services based on the price of a unit of service established in the contract, but not more than 10 percent of the contract price. However, when purchasing insurance services, the contract specifies the price formula and the maximum value of the contract price. This will increase the volume of services and the price of the contract within 10 percent in accordance with the price formula (part 2 of article 34 of Law No. 44-FZ, Decree of the Government of the Russian Federation of January 13, 2014 No. 19).

Situation: is it possible to change the price of an energy service contract by 10 percent

No you can not. The price of an energy service contract is determined based on the percentage of savings payable to the contractor. the percentage of savings is not subject to change during the execution of the contract (parts 14 and 15 of article 108 of Law No. 44-FZ, letter of the Ministry of Economic Development of Russia dated October 4, 2016 No. OG-D28-11935).

Situation: the contractor has installed doors whose characteristics differ from those specified in the terms of reference. The contractor submitted a document that the doors have improved characteristics. Should the contractor be penalized?

No no need. The possibility of supplying goods with improved characteristics is provided for in Part 7 of Article 95 of Law No. 44-FZ: “During the execution of a contract, it is allowed to supply goods, perform work or provide services, the quality, technical and functional characteristics (consumer properties) of which are improved ...”.

Situation: is it possible to conclude an agreement on changing the contract number and the number of the protocol for consideration and evaluation of quotation bids

Yes, since the number of the contract and the number of the protocol for the consideration and evaluation of quotation bids are not essential terms of the contract. The customer has the right to change them. At the same time, it must be remembered that in this situation, he needs to make changes to the information about the contract in the register of contracts on the official website within three working days from the date of signing the additional agreement (part 3 of article 103 of Law No. 44-FZ).

Situation: is it allowed to change the amount of the advance payment during the execution of the contract

No, not allowed. This possibility is not provided for by either Article 34 or Article 95 of Law No. 44-FZ.

Situation: is it possible to extend the expiration date of the contract due to the fact that the goods are detained at customs

No you can not. Such a case is not provided for by Part 1 of Article 95 of Law No. 44-FZ. Therefore, if an additional agreement is concluded to the contract to change its expiration date on this basis, there is a risk that the antimonopoly service will regard such a change as an offense under Article 7.32 of the Code of Administrative Offenses of the Russian Federation.

The supplier should be aware that the customer may apply to him liability in the form of a penalty (fines, penalties) for failure to perform or improper performance of obligations that are provided for by the contract (part 6 of article 34 of Law No. 44-FZ).

Situation: can the customer make changes to the contract if during the execution of the contract it turned out that part of the work is not necessary

No, he can not. The possibility of changing the terms of the contract in this case is not provided for by Law No. 44-FZ.

The customer must terminate the contract by agreement of the parties (part 8 of article 95 of Law No. 44-FZ) in the amount of work performed. For the remaining cash make purchases in the manner prescribed by Law No. 44-FZ.

Situation: how can the customer reduce the quantity of the delivered goods, if during the execution of the contract 8 percent of such delivered goods were no longer necessary, but the customer did not provide for the possibility of changing the terms of the contract in the procurement documentation

If the customer did not provide for the possibility of changing the terms of the contract in the procurement documentation on the basis of subparagraph “b” of paragraph 1 of part 1 of Article 95 of Law No. 44-FZ, then it is impossible to amend the terms of the contract in terms of reducing the quantity of goods supplied.

In this regard, after the delivery and acceptance of the required quantity of the supplied goods, the customer and the supplier must consider terminating the contract by agreement of the parties in terms of the quantity of the supplied goods, which the customer no longer needs, as well as in terms of a commensurate reduction in the contract price based on the price of a unit of goods .

Situation: is it possible to make changes to the terms of the contract in terms of replacing the source of financing

No you can not. The source of funding is one of the mandatory conditions of the contract (clause 2, article 42 of Law No. 44-FZ). The possibility of changing it is not provided for by either Article 34 or Article 95 of Law No. 44-FZ.

Situation: can the customer establish in the contract a condition on its annual prolongation

No, he can not. The provisions of Law No. 44-FZ do not provide for the possibility of extending the fulfillment of obligations under the contract for the next year. The prolongation clause of the contract does not clearly define the date of termination of the legal relationship between the parties and increases the price of the contract to a value exceeding that allowed by Law No. 44-FZ, which violates the provisions of Law No. 44-FZ. A similar position is contained in the decision of the Arbitration Court of the Kurgan Region dated July 22, 2015 in case No. A34-3527 / 2015.

Situation: is it possible to extend the contract to 100,000 rubles. The contract includes an extension

No you can not. If you extend the contract, you will automatically increase the cost from 100,000 to 200,000 rubles. and violate the provisions of clause 4 of part 1 of article 93 of Law No. 44-FZ. worker contract service or a contract manager will be punished with a fine of 30,000 rubles. for the conclusion of a contract for an amount that exceeds 100,000 rubles. Also, the term of the contract refers to the essential conditions that cannot be changed (part 2 of article 34 of Law No. 44-FZ, part 1 of article 7.29 of the Code of Administrative Offenses of the Russian Federation).

Situation: whether to conclude an additional agreement to the contract when the details, location address, manager, name of the customer or contractor change

There is no obligation. The parties to the contract have the right to either conclude an additional agreement or send a notification. Reason: the terms of the contract on the name, details, location address are not recognized by the managers as essential and do not require agreement by the parties. The conclusion follows from Article 432 of the Civil Code of the Russian Federation, Article 34 of Law No. 44-FZ. The position is confirmed by the Ministry of Economic Development of Russia in a letter of September 5, 2016 No. D28i-2394 and judicial practice: resolutions of the Federal Antimonopoly Service of the North-Western District of May 25, 2007 No. A56-18227 / 2006, of July 1, 2005 No. A56-35431 / 04.

Situation: does the customer have the right to increase the price of the contract within 10 percent if, after the changes, the cost of the contract exceeds the NMTsK

Yes, right. The main thing is that the new price does not exceed the adjusted limits. That is, the customer has the right to increase the price of the contract by no more than 10 percent within the adjusted limits (subclause “b”, clause 1, part 1, article 95 of Law No. 44-FZ, article 34, clause 2, article 72 of the Budget Code RF).

In what cases it is impossible to change the contract

You cannot change:

Subject of the contract (for example, a specific type of service and features of their performance under the contract paid provision services) (clause 1, article 779 of the Civil Code of the Russian Federation).
Conditions specified in law or otherwise legal acts as essential or necessary for contracts of this type (paragraph 2, clause 1, article 432 of the Civil Code of the Russian Federation).
Conditions regarding which, at the request of one of the parties, an agreement must be reached (paragraph 2, clause 1, article 432 of the Civil Code of the Russian Federation). For example, if the customer in the contract has established banking support by a specific bank and the parties will need to finance through a specific bank.
Supplier (contractor, performer). An exception is the case when the new supplier (contractor, performer) is the successor of the supplier (contractor, performer) under such a contract as a result of the reorganization of a legal entity in the form of transformation (clause 5 of article 58 of the Civil Code of the Russian Federation), merger (clause 1 of article 58 of the Civil Code RF) or accession (clause 2, article 58 of the Civil Code of the Russian Federation).

Attention: change of the customer is allowed without restrictions. The rights and obligations of the customer provided for by the contract are transferred to the new customer (part 6 of article 95 of Law No. 44-FZ).

Situation: in what cases can the customer transfer rights and obligations under contracts to a new customer who is not the successor of the old enterprise

The transfer of rights and obligations under contracts can only be carried out if the new institution belongs to the category of customers in the understanding of Law No. 44-FZ.

Law No. 44-FZ does not directly establish cases when a change of the customer is possible, but allows such a possibility itself (part 6 of article 95 of Law No. 44-FZ, letter of the Ministry of Economic Development of Russia dated March 21, 2016 No. D28i-808).

The transfer of rights and obligations based on the meaning of part 6 of article 95 of Law No. 44-FZ can only be made to a new customer.

Situation: is it possible to transfer the rights and obligations under the contract to a foreign state? The subject of the contract is the construction of an object transferred to the ownership of South Ossetia

No you can not. The rights and obligations under the contract are transferred to the new customer in the event of a change in the customer. A foreign state in the understanding of Law No. 44-FZ cannot be a customer. Such a conclusion follows from paragraphs 5-7 of Article 3 and part 6 of Article 95 of Law No. 44-FZ.

Situation: can the parties, having concluded an appropriate supplementary agreement, replace one supplier of last resort with another under a contract for the supply of electricity in connection with the loss by the original supplier of the status of a supplier of last resort on the basis of an order of the Ministry of Energy of Russia

Changing the supplier of last resort is not allowed. Law No. 44-FZ allows the replacement of a supplier only if it is replaced by a successor as a result of the reorganization of a legal entity in the form of transformation, merger or acquisition (part 5 of article 95 of Law No. 44-FZ).

In this case, the parties should draw up an additional agreement on termination of the contract by agreement of the parties (part 8 of article 95 of Law No. 44-FZ) due to the impossibility of its execution (article 416 of the Civil Code of the Russian Federation).

Situation: can the customer change the name of the contractor in the concluded contract if there are documents confirming the change in the name of the contractor

Yes maybe. The name of the contractor is not an essential condition of the contract (Clause 1, Article 432 of the Civil Code of the Russian Federation). The change of the contractor is not carried out, as it remains the same, but with a new name.

The same applies to changes in the name of a legal entity in connection with bringing it into line with the norms of Chapter 4 of the Civil Code of the Russian Federation (Clause 7, Article 3 of the Law of May 5, 2014 No. 99-FZ “On Amendments to Chapter 4 of Part One Civil Code Russian Federation and on the invalidation of certain provisions of legislative acts of the Russian Federation”). For example, if the open joint-stock company to a public joint stock company.

Situation: is it possible to perform the work that the contractor must perform in 2018 in 2017 and vice versa

No you can not.

The procedure and deadlines for the performance of work are among the essential conditions of the contract. Essential conditions cannot be changed, except for the exceptions listed in Article 95 of Law No. 44-FZ. Changes in the order and timing of work performance are not included in the exceptions (clause 1 of article 432 of the Civil Code of the Russian Federation, part 13 of article 34 of Law No. 44-FZ).

If you illegally change the terms of the contract, the official faces a fine of 20 thousand rubles, a legal entity - 200 thousand rubles. (part 4 of article 7.32 of the Code of Administrative Offenses of the Russian Federation).

Obligations of the customer who changed the contract

After the parties have entered into an additional agreement to the contract that changed its terms, the customer is obliged:

Send information about the changes made to the contract to the Treasury of Russia within three working days from the date of conclusion of such an agreement (part 3 of article 103 of Law No. 44-FZ). The procedure for sending such information is established in the following acts:
- Rules for maintaining the register of contracts concluded by customers, approved by Decree of the Government of the Russian Federation of November 28, 2013 No. 1084;
- Order of the Ministry of Finance of Russia dated November 24, 2014 No. 136n "On the procedure for generating information, as well as the exchange of information and documents between the customer and the Federal Treasury in order to maintain a register of contracts concluded by customers."
Post information about the changes made to the contract in a single information system(zakupki.gov.ru) within one working day from the date of conclusion of such an agreement. Information constituting a state secret, the customer should not post (part 26 of article 95 of Law No. 44-FZ).

Recommendation: Changing the source of funding when paying for a completed contract Problem:

At the time of placing the purchase in the procurement schedule and placing the auction for the purchase of goods, the organization placed the auction with the condition of financing from entrepreneurial activity. During the execution of the contract, budgetary funds were allocated for an identical product. How is it possible to pay from the allocated budget funds and is it possible to change the source of funding?

Solution:

According to Part 1 of Art. 34 of Law No. 44-FZ, the contract is concluded on the terms stipulated by the notice of the procurement or an invitation to take part in the selection of the supplier (contractor, performer), procurement documentation, application, final offer of the procurement participant with whom the contract is concluded, except in cases where which, in accordance with Law No. 44-FZ, a notice of procurement or an invitation to take part in determining the supplier (contractor, performer), procurement documentation, application, final offer are not provided.

In turn, the notice of the procurement, including the notice of the holding of an electronic auction, must contain, in accordance with paragraph 2 of Art. 42 of Law No. 44-FZ, a summary of the terms of the contract, containing the name and description of the procurement object, taking into account the requirements provided for in Art. 33 of Law No. 44-FZ, information on the quantity and place of delivery of the goods that are the subject of the contract, the place of performance of work or the provision of services that are the subject of the contract, as well as the timing of the delivery of goods or the completion of work or the schedule for the provision of services, the initial (maximum) price of the contract, source of financing.

Attention:

Thus, the funding source is part of the terms of the contract.

According to part 2 of Art. 34 of Law No. 44-FZ, when concluding and executing a contract, changing its terms is not allowed, with the exception of cases provided for in Art. 34 and Art. 95 of Law No. 44-FZ.

When executing the contract in accordance with Part 1 of Art. 95 of Law No. 44-FZ, changing the essential terms of the contract during its execution is not allowed, with the exception of changing them by agreement of the parties in the following cases:

a) when the price of the contract is reduced without changing the quantity of goods, the volume of work or services provided for by the contract, the quality of the goods supplied, the work performed, the service provided and other conditions of the contract;
b) if, at the suggestion of the customer, the quantity of goods, volume of work or service provided for by the contract is increased by no more than ten percent or the quantity of goods supplied, the volume of work performed or service provided is reduced by no more than ten percent. At the same time, by agreement of the parties, it is allowed to change, taking into account the provisions of the budgetary legislation of the Russian Federation, the price of the contract in proportion to the additional quantity of goods, additional volume of work or service based on the price of a unit of goods, work or service established in the contract, but not more than ten percent of the contract price. When reducing the quantity of goods, volume of work or service provided for by the contract, the parties to the contract are obliged to reduce the price of the contract based on the unit price of the goods, work or service. The price of a unit of additionally delivered goods or the price of a unit of goods in case of a decrease in the quantity of goods supplied under the contract must be determined as the quotient of dividing the initial price of the contract by the quantity of such goods provided for in the contract;

if the possibility of changing the terms of the contract was provided for by the procurement documentation and the contract, and in the case of procurement from a single supplier (contractor, performer) by the contract:
if the price of a contract concluded to meet federal needs for a period of at least three years is or exceeds the price established by the Government of the Russian Federation, and the execution of the said contract is impossible due to circumstances beyond the control of the parties to the contract without changing its terms, these terms may be changed on the basis of a decision Government of the Russian Federation;
if the price of a contract concluded to meet the needs of a constituent entity of the Russian Federation for a period of at least three years is or exceeds the price established by the Government of the Russian Federation, and the execution of the said contract is impossible due to circumstances beyond the control of the parties to the contract without changing its terms, these terms may be changed to based on the decision of the highest executive body of state power of the constituent entity of the Russian Federation;
if the price of a contract concluded to meet municipal needs for a period of at least one year is or exceeds the price established by the Government of the Russian Federation, and the execution of the said contract is impossible due to circumstances beyond the control of the parties to the contract without changing its terms, these terms may be changed based on the decision of the local administration;
change in accordance with the legislation of the Russian Federation of regulated prices (tariffs) for goods, works, services;
in the cases provided for in paragraph 6 of Art. 161 of the Budget Code of the Russian Federation, while reducing the limits of budget obligations previously communicated to the state or municipal customer as the recipient of budgetary funds. At the same time, the state or municipal customer, during the execution of the contract, ensures the agreement of new terms of the contract, including the price and (or) terms of the contract and (or) the quantity of goods, scope of work or services provided for by the contract;
in case of concluding a contract with a foreign organization for the treatment of a citizen of the Russian Federation outside the territory of the Russian Federation, the price of the contract may be changed if the list of services related to the treatment of a citizen of the Russian Federation is increased or decreased for medical reasons, if this opportunity was provided for by a contract with a foreign organization.

Thus, there is no direct reference in Law No. 44-FZ to the right of the customer to amend the contract in terms of the source of financing, therefore, the customer is not recommended to change this condition of the contract, since this is not provided for by Law No. 44-FZ.

No, it is not possible to change the source of funding in a contract concluded in accordance with 44-FZ. The source of funding is one of the mandatory conditions of the contract (clause 2, article 42 of Law No. 44-FZ). The possibility of changing it is not provided for by either Article 34 or Article 95 of Law No. 44-FZ.

Can a budgetary institution, in the event of a shortage of budgetary funds, pay for a contract concluded under 44-FZ with money from the extrabudgetary? Is there a provision on procurement under 223-FZ?

Answer

No, he can not. In accordance with the Letter of the Ministry of Economic Development of the Russian Federation dated 03.08.2015 No. D28i-2286, funding sources are essential terms of the contract. You can change the terms of the contract only on the grounds specified in Art. 95 federal law dated April 5, 2013 No. 44-FZ. It does not follow from the question that there are such grounds. Therefore, you cannot change the source of funding.

The rationale for this position is given below in the materials of "Systems Lawyer" .

What are the general procurement rules

Separately, it is necessary to mention such an important point as the prohibition for the customer to negotiate with procurement participants (). This prohibition applies to the customer, his officials, procurement commissions and is valid at all stages of procurement until the winner is determined.

When the winner is known, this prohibition does not apply.

When conducting an electronic auction, the law does not allow negotiations between the customer and the operator electronic platform, as well as between the operator and the procurement participants, if this creates preferential conditions or confidential information may be disclosed ().

An exception is the case when negotiations are expressly permitted by law, for example, when conducting a purchase in the form of a two-stage tender ()*.

2. LETTER OF THE MINISTRY OF ECONOMIC DEVELOPMENT OF RUSSIA DATED 08/03/2015 No. D28i-2286 “On the possibility of applying the terms of the contract before its conclusion; on the mandatory terms of the contract; on changing the source of financing of the contract during its execution and other issues”

Development Department contract system The Ministry of Economic Development of Russia has considered a letter on the application of the provisions of 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 - Law No. 44-FZ) and informs.

1. In accordance with paragraph 2 of Article 425 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the parties have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement, unless otherwise established by law or follows from the essence of the relevant relations . According to paragraph 3 of Article 3 of Law No. 44-FZ, the procurement begins with the identification of the supplier (contractor, performer) and ends with the fulfillment of obligations by the parties to the contract. In accordance with paragraph 2 of Article 3 of Law No. 44-FZ, the determination of a supplier begins with the placement of a notice of the procurement of goods, work, services to meet state needs (federal needs, needs of a constituent entity of the Russian Federation) or municipal needs, or in established by law 44-FZ in cases where an invitation is sent to take part in the selection of a supplier (contractor, performer) and ends with the conclusion of a contract.

Thus, the application of the provisions of paragraph 2 of Article 425 of the Civil Code of the Russian Federation is not possible to relations, regulated by law No. 44-FZ, due to the fact that legal obligations between the customer and the supplier begin exclusively from the moment the contract is concluded.

2. Law No. 44-FZ does not disclose the content of the concept of "essential terms of the contract". At the same time, Article 34 of Law No. 44-FZ defines mandatory conditions execution of the contract. Considering that the legislation of the Russian Federation on the contract system in the field of procurement is based, among other things, on the provisions of the Civil Code of the Russian Federation, a contract concluded under Law No. 44-FZ must contain the mandatory conditions provided for in Article 34 of Law No. 44-FZ, and comply with the requirements established by the Civil Code of the Russian Federation, depending on the subject of the contract.

3. In accordance with Part 1 of Article 34 of Law No. 44-FZ, the contract is concluded on the terms provided for in the notice of procurement.

According to paragraph 2 of part 1 of article 42 of Law No. 44-FZ, the notice of the procurement contains, among other things, information on the source of financing. When concluding and executing a contract, changing its terms is not allowed, with the exception of cases provided for in Article 34 of Law No. 44-FZ and Article 95 of Law No. 44-FZ. According to paragraph 2 of clause 1 of Article 432 of the Civil Code of the Russian Federation, the conditions on the subject matter of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, according to the application of one of the parties, should be an agreement has been reached.

Thus, according to the Department for the Development of the Contract System of the Ministry of Economic Development of Russia, a change in the source of financing during the execution of the contract is a significant change.

4. In accordance with clause 8 of part 1 of Article 93 of Law No. 44-FZ, procurement from a single supplier (contractor, performer) may be carried out by the customer, including in terms of the provision of services for water supply, sanitation, heat supply, gas supply (with the exception of services for the sale liquefied gas), for connection (connection) to engineering and technical support networks at prices (tariffs) regulated in accordance with the legislation of the Russian Federation.

In addition, in accordance with paragraph 23 of part 1 of article 93 of Law No. 44-FZ, the purchase from a single supplier (contractor, performer) can be carried out by the customer in the event of a contract for the provision of services for the maintenance and repair of one or more non-residential premises transferred for free use or operational management to the customer, services for water, heat, gas and energy supply, security services, services for the removal of household waste, if these services are provided to another person or other persons using non-residential premises located in the building in which the premises transferred to the customer for free use or operational management are located. Thus, Law No. 44-FZ defines the specifics of procurement in the field of utilities.

5. The regulation on the preparation and placement in the unified information system in the field of procurement of a report on the execution of a state (municipal) contract and (or) on the results of a separate stage of its execution (hereinafter referred to as the report) was approved by Decree of the Government of the Russian Federation dated November 28, 2013 No. 1093 (hereinafter referred to as the Regulation). In accordance with paragraph 7 of the Regulations, when generating a report on the results of the execution of a separate stage of contract execution, information is filled in the corresponding columns of the report on an accrual basis from the beginning of the year in which the execution of a separate stage is carried out, to the date of execution of a separate stage of contract execution. The functionality of the official website provides for the possibility of generating a report on the execution of a state (municipal) contract and (or) on the results of a separate stage of its execution by creating a new report during the execution of each stage of the contract, as well as by amending (editing) the previous report on the execution of a separate stage execution of the contract in accordance with the sequence number of the report change. Thus, the formation of a report on the execution of the state (municipal) contract and (or) on the results of a separate stage of its execution on the official website is carried out in one of the above ways.

6. At the same time, Law No. 44-FZ does not establish a requirement to provide information on the name of the country of origin of goods in accordance with the All-Russian Classifier of the Countries of the World, approved by the Decree of the State Standard of Russia dated December 14, 2001 No. 529-st. Thus, if the procurement participant indicated in the procurement application information about the country of origin of the goods as the USA, the Russian Federation or another generally accepted abbreviation of the country name, not provided for all-Russian classifier countries of the world, but allowing unequivocal identification of this country of the world, such an application cannot be rejected on the basis of failure to provide information about the name of the country of origin of the goods.

7. In accordance with paragraph 1 of part 3 of article 66 of Law No. 44-FZ, the first part of the application for participation in electronic auction when concluding a contract for the supply of goods, in respect of which the documentation of such an auction contains an indication of the trademark (its verbal designation) and the name of the country of origin of the goods, may contain only the consent of the auction participant to the supply of goods with such a trademark. When concluding a contract for the supply of goods in respect of which the documentation of such an auction contains an indication of a trademark (without indicating the country of origin), the first part of the application for participation in an electronic auction must contain the consent of the auction participant to supply goods with such a trademark and the name of the country the origin of the goods.

8. If a participant in an electronic auction offers for delivery a product that is equivalent to a product, in respect of which the auction documentation contains an indication of the trademark (its verbal designation) (if any) and the name of the country of origin of the product, the first part of the application for participation in electronic auction must contain consent to the supply of an equivalent product, as well as specific indicators of the product corresponding to the equivalence values established by this documentation, and an indication of the trademark (its verbal designation) (if any) (paragraph 1 of part 3 of article 66 of Law No. 44-FZ ). At the same time, we would like to draw your attention to the fact that clarifications of a public authority have legal force, if this body is endowed, in accordance with the legislation of the Russian Federation, with special competence to issue clarifications on the application of the provisions of regulatory legal acts.

In accordance with the Regulations on the Ministry of Economic Development of Russia, approved by Decree of the Government of the Russian Federation of June 5, 2008 No. 437, the Ministry of Economic Development of Russia is not empowered to clarify the legislation of the Russian Federation*.

Professional reference system for lawyers, in which you will find the answer to any, even the most difficult question.

Chapter 1. How is the customer going to spend money?

Last time we tried to find out where the customer got the money from and where he was going to spend it. It's time for the question "How?".
The source of financing very often determines the obligation or right of the customer to spend money in a certain way. In most cases, what comes from the budget, the customer is obliged to spend in accordance with the federal law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs." There is no point in reading it in its entirety (if you are not a fan of understanding everything thoroughly or it is not related to your professional interests). If, nevertheless, such a desire is present, use legal reference systems or the Internet (for example, the text of the law is in the public domain here base.garant.ru/70353464). The name is long (although there are longer ones), so it is usually reduced to 44-FZ - we will do the same.

In a number of cases (they are specified in parts 1-3 of Article 15 of 44-FZ), a budgetary institution may purchase more than in a simple way- on the basis of the federal law of July 18, 2011 N 223-FZ "On the procurement of goods, works, services certain types legal entities” (hereinafter referred to as 223-FZ). Basically, customers use 223-FZ to make purchases at the expense of the off-budget, but they can also use it acting as a contractor under a contract (that is, the institution itself is a contractor for someone, and dumps part of the work on you), or spending grants.

Remember the boundary conditions? We add one more thing: the customer works only according to 44-FZ.

The main reasons for the restriction:

1. Work on 223-FZ is easier to consider in comparison with 44-FZ (and we will do it someday ... probably).
2. 44-FZ is much more uniform and strict in relation to the customer and the contractor, and 223-FZ is motley and framework (so far), leaving more room for the customer, and in some ways for the contractor.
3. There is a clear trend towards tightening 223-FZ. It is possible that when the author is finally ready to start an article on this topic, he will already become completely decrepit and gray-haired 223-FZ will either be canceled or regulated to the state of 44-FZ. In general, either the check, or the donkey, or Nasreddin.
4. Not all budgetary institutions enjoy the right to work according to 223-FZ.

In order to purchase something (whether it be a product, work or service), the customer must, simplifying, determine the winner among all available procurement participants (the official term is from Article 3 of the 44-FZ). In terms of 44-FZ, this process is called "determining the supplier (contractor, performer)". The methods of this determination are competitive (auction, tender, request for proposals, request for quotations - more details in Article 24 44-FZ) or non-competitive (purchase from a single supplier). As follows from the boundary conditions, we are considering non-competitive purchases.

There are several reasons for purchasing from a single supplier (for those interested, the entire part 1 of article 93 44-FZ), but in practice, paragraph 4 and paragraph 5 of part 1 of article 93 44-FZ are most often useful to us.
In accordance with paragraph 4, the customer has the right to make purchases without bidding for an amount not exceeding 100 thousand rubles.

Full text of the paragraph:

“4) procurement of goods, work or services for an amount not exceeding one hundred thousand rubles. At the same time, the annual volume of purchases that the customer is entitled to make on the basis of this clause must not exceed two million rubles or must not exceed five percent of the total annual volume of purchases of the customer and should not exceed fifty million rubles. The specified restrictions on the annual volume of purchases, which the customer is entitled to make on the basis of this clause, do not apply to purchases made by customers to meet the municipal needs of rural settlements. Regarding the federal agency executive power that makes purchases to meet the federal needs of state bodies formed to ensure the activities of the President of the Russian Federation, the Government of the Russian Federation, the calculation of the indicated restrictions on the annual volume of purchases that the customer is entitled to make on the basis of this clause is made separately for such a federal executive body and each such state authority;"

All customers have this right.
Some customers also have access to purchases for an amount not exceeding 400 thousand rubles. (clause 5 of part 1 of Article 93).

Full text of the paragraph:

"5) procurement of goods, works or services by state or municipal institution culture, the statutory goals of which are the preservation, use and promotion of cultural heritage, as well as other state or municipal institutions (zoo, planetarium, park of culture and recreation, nature reserve, botanical garden, national park, natural park, landscape park, theater, institution performing concert activities, a television and radio broadcasting institution, a circus, a museum, a cultural center, a cultural center, a club, a library, an archive), state or municipal educational organization for an amount not exceeding four hundred thousand rubles. At the same time, the annual volume of purchases that the customer is entitled to make on the basis of this paragraph shall not exceed fifty percent of the total annual volume of purchases of the customer and shall not exceed twenty million rubles;

How can knowing these limit amounts be useful? For example, if they are going to conclude an agreement with you for an amount of more than 400 thousand rubles, this is an occasion to think: “Will the agreement really be concluded?”, and ask the customer for clarification: what is the basis from part 1 of article 93 44-FZ he is going to use. If you are promised a contract for an amount exceeding 100 thousand rubles, and the customer does not belong to the institutions that are allowed to purchase according to clause 5, this is also a reason to think and ask for clarification.

By the way, about the limit amounts: it is often possible to meet the contract price of 99,999.99 rubles, 399,999.99 or something similar. Probably, they do it just in case - you never know what. In fact, the law uses the words “not exceeding four hundred thousand rubles” and “not exceeding one hundred thousand rubles.” 100 thousand rubles exceeds 100 thousand rubles? No. And 400 thousand rubles. exceeds 400 thousand rubles? Again no. Therefore, it is possible to conclude an agreement for both 100 thousand rubles and 400 thousand rubles. - without taking away a penny.

And why do we say “agreement” if the system is contractual (by the name of the law), and even according to the text of the law, it is the “contract” that is used? The name doesn't matter - you can use whatever you like.

For those interested:

According to part 8 of article 3 of 44-FZ:
"8) government contract, municipal contract - an agreement concluded on behalf of the Russian Federation, a constituent entity of the Russian Federation (state contract), municipality(municipal contract) by a state or municipal customer to meet, respectively, state needs, municipal needs;

And budgetary institutions are not state or municipal customers - they belong to other customers (part 7 of article 3 of 44-FZ). So what should budgetary institutions conclude? Just a contract? Or an agreement? We are dealing with another flaw in the lawmakers who forgot to clarify this (in fact, a significant part of 44-FZ is a complete flaw, but this is so, by the way).

A little more tediousness:

The origins of the separation of the concepts of "agreement" and "contract" should probably be sought in the depths of the 94-FZ (this is the law on placing an order, which was in force before the entry into force of 44-FZ), according to which, based on the results of purchases for an amount not exceeding 100 thousand. rub. (then the amount itself was not mentioned in the law and the wording “not exceeding the specified maximum amount of cash settlements” was used, which at first amounted to 60 thousand rubles - from 11/21/2001 to 07/21/2007, and then 100 thousand rubles - from July 22, 2007 to the present) and 400 thousand rubles. "contracts, as well as other civil law agreements in accordance with the Civil Code of the Russian Federation" could be concluded. There was even a practice when budgetary institutions, based on the results of a competitive purchase, concluded a contract, up to 100 or 400 thousand rubles. - contract, and in other cases - civil contract.

Therefore, even now: for simplicity, someone uses the term “agreement” for procurement under paragraphs 4, 5 of part 1 of article 93 of 44-FZ and “contract” for everything else, someone applies the term “contract” only to competitive ways to determine the supplier, and the "agreement" - for everyone else, etc., etc.

In fact, a contract (both state and municipal, and “ordinary”) is also a civil law contract (or simply a contract), which is confirmed by the above-mentioned part 8 of article 3 of the 44-FZ, and paragraph 3 of part .1 article 1 44-FZ.

Extract from article 1:

Article 1. Scope of application of this Federal Law
1. This Federal Law governs relations ... in the part relating to:
3) conclusion of a civil law contract, the subject of which is the supply of goods, the performance of work, the provision of services (including the acquisition of real estate or the lease of property), on behalf of the Russian Federation, a constituent entity of the Russian Federation or a municipality, as well as budget institution or otherwise legal entity in accordance with Parts 1, 4 and 5 of Article 15 of this Federal Law (hereinafter referred to as the contract);

Chapter 2. How is the customer going to spend money? - 2

There is an official website of the Unified Information System (UIS) in the field of procurement, located at: zakupki.gov.ru/epz/main/public/home.html
If you follow the link and select "Procurement Planning - Procurement Schedules (44-FZ) and Purchase Plans (223-FZ)" from the menu, then we will get to the section devoted to ... right - Procurement Schedules and Purchase Plans.

Menu navigation:

What is the Procurement Schedule (more often we will call it simply - Schedule, and sometimes quite familiarly - PG)? This is a document that contains certain information about planned purchases. The placement of the Schedule in the EIS is mandatory for the customer.

Let's start with the customer with TIN 5514008737, whose FCD plan turned out to be the most informative (in the previous article we considered it second).
We get a sample:

Don't be afraid a large number Schedules: in fact, there is only one, it just contains four main positions. The fact is that the persons responsible for the site consider it more convenient when a search for schedules gives out not a single link to the entire desired schedule, but separate links to all the main purchases contained in it.
The "Details" link will take us to the " General information”, containing some basic information about the customer and the schedule itself.

General information:

And the “Schedule Positions” tab will tell you about those positions that we have already observed in the search results (in the amount of four pieces).

Positions of the Schedule:

We are interested in purchases in accordance with paragraphs. 4.5, so we choose “Final positions - Procurement in accordance with paragraph 4,5,23,26,33,42,44 of part 1 of Art. 93 44-FZ - View "(customer's purchases that are not related to the items specified in this section are on the tab "Schedule Items" mentioned above).

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For purchases not exceeding 100 thousand rubles. we look at the section "Goods, works or services for an amount not exceeding one hundred thousand rubles" (for 400 thousand rubles - a section with the appropriate name):

How so - only two lines? Yes, just two lines. Not much. No, and in this case, after comparative analysis of the FCD plan and the Schedule (including the section “Schedule Items”), it is possible to establish with a certain degree of certainty what belongs to where, but this is time-consuming, difficult to describe in an article and inappropriate from the point of view of the usefulness of the result obtained in this way.

Let's look at the schedule of the customer with TIN 8617013974, whose FCD plan was very uninformative (we considered it first in the last article).
By doing the above manipulations, we get:

Already better. We are interested in the columns "Type of expenses" and "Amount by code". What it is? The column "Type of expenses" contains the articles of KOSGU already familiar to us (who forgot about them or did not read about them - the information is in the previous article). In fact, the type of expenses is not KOSGU, but more on that later. I remind you that we plan to develop software- therefore, we are interested in the lines with article 226 of KOSGU.
There are several such lines (namely, four): with amounts of 2.38, 1.25, 27.23749 and 297.48941 thousand rubles. respectively. Does any of them look like the amount that the customer promises? If yes, that's good, and if not, not so good. They differ from each other in the columns "Section (subsection)" and "Target article". Remember the FHD plan, which we considered uninformative? This is one of the reasons: the FCD plan should, in theory, contain no less financial information than the Schedule. But here it's the other way around.

A couple more examples:
Customer with TIN 5207013446 (for a change, this is a government institution):

Here, in the “Type of expenses” column, the articles of KOSGU are again indicated, and the level of detail hints that each line is a separate purchase: there are many identical lines that differ only in amount. For example, lines 1, 4, 5, 7, 8, 10, 12 contain the article KOSGU 226 we are looking for and differ from each other only in the amount - all other fields are the same. Lines 2, 6, 11 also contain KOSGU 226 and differ from the previous group only in the "Target Article" column. And in general: not according to our article of KOSGU, only lines 3 (KOSGU 225) and 9 (KOSGU 340) go - this is such an interesting Schedule.

Customer with TIN 2343015493 (this is again a budgetary institution):

There are no more KOSGU articles in the “Type of expenses” column, but the level of detail again hints that each line is a separate article of KOSGU or even a purchase.

Why is everyone so different? From 01/01/2016, new requirements for the information that the Schedule should contain came into force, and the PG that we considered first was drawn up exactly in accordance with these requirements. For example, in the Schedule of the same customer for 2015, there is quite a breakdown by articles of KOSGU (according to KOSGU 226, 496.6 thousand rubles are provided):

What about the second schedule? Here the customer tried to squeeze in new form A schedule made in accordance with the old requirements: then the purchases had to be detailed for each article of KOSGU, the field for which was the last in the list. That is why in the field "Type of expenses" (which is the last one now) we met the articles of KOSGU - the customer acted by analogy.
The third and fourth Schedules are also hybrids of old and new forms and requirements.
And if we take into account that since 2016 there has been a transition to a new structure of the CSC, then the sheer variety of surprises is absolutely not surprising.

A logical question: why then do we need to know about Schedules in general and about hybrids in particular? Indeed, in the Schedule, made according to the new requirements, nothing can be understood at all.

Firstly, some customers (examples in front of you) still place the Schedule in the old way (in a variety of variations, but still), and with some preparation, in many cases it is quite possible to determine what, where and how to watch.
Secondly, if the customer switched to a new version of the Schedule not from the very beginning of the year, but already during it, then the old versions of the Schedule can be viewed on the Version History tab.
Thirdly, as we already know (and see in the example), the legislation is changing, and someone at the top may decide that the life of customers has become too simple and easy after such innovations, and offer to return everything back (or do it in some other way We love change and reform.

Thus, it is too early to discount the Schedule: you may come across a completely “stubby” modern version, and one of the many hybrids that has one or another degree of detail.

Why is the presence of money on the KOSGU article of interest to us (if we see it in the Schedule) is not one hundred percent confirmation? For the same reasons as in the FCD plan: there is not enough detail. For one line of the Schedule (even taking into account the breakdown of the KOSGU article due to the additional columns “Section (subsection)” and “Target Article”), several purchases can be provided, and from the fact that there is a sum of money for the KOSGU we are interested in, we cannot make an unambiguous conclusion that these figures include precisely our (potential) income.

And if the Schedule is detailed to the level of purchases, does it contain our KOSGU article and the amount is the same? This fantasy is also not a 100% guarantee - after all, another purchase (even if the probability is very small) may have the same KOSGU article and the same amount.

Why are we doing all this?

Sometimes the schedule contains more than enough detail.
If the Schedule contains KOSGU with the provisions for them financial resources, but the one we need is not among them; or there is KOSGU, but the amount for it is less than that offered by the customer; or if there is reason to believe that the Schedule is detailed to the level of individual purchases, and there is no line with the amount promised by the customer, then this may be the first (and if a similar situation was with the FCD plan - the second) alarm bell.
The presence in the Schedule of a line containing the KOSGU article of interest to us with an amount equal to or greater than that promised by the customer - albeit indirect, but still confirmation that the costs for you are really planned. The presence in the Schedule, detailed to the level of individual purchases, of an amount exactly corresponding to the customer's proposal, can also be such indirect confirmation.
It is desirable to know about the existence of such a tool for information retrieval.

Small clarification:

Previously, customers could place Schedules in the so-called unstructured form, that is, simply by attaching a document - as we saw in the example of the FCD plan. In this case, we need to go to the “Documents” tab and download the Schedule: now there should not be such on the site, with the exception of erroneously placed or Schedules of past years, but what if you come across?

Chapter 3

If the FCD plan is a promise of money (we talked about this in the first article), then the Schedule is a promise to make a purchase. And any promise ... is correct: it can be canceled (the purchase will not take place in principle) or changed (the date of the purchase, the terms for concluding or executing the contract, the subject of the purchase, etc. will change).

How are the FCD plan and Schedule related? The FCD plan is primary - first, money is provided for certain items of expenditure, and then they are already determined with the method of spending (method of purchase).

The FCD plan is signed by the customer and approved by the founder. The schedule is approved by the customer independently. Yes, at the local level there may be some kind of coordination procedure that obliges the customer to take some additional gestures (and this, by the way, can lead to a significant loss of time), but he signs the Schedule with his electronic signature on the EIS website the customer himself.

In addition, in most cases financial and procurement activity customers is tied to a variety of automated systems data exchange (ACC, information systems budget process, systems for supporting the budget process - there are quite a few varieties and they are called differently, so let them just be systems). It can be one large system, or several smaller systems (planning, finance, budgeting, government orders, etc.) interacting with each other in a certain way. And in these systems there are electronic incarnations of the FCD plan and the Schedule - below we are talking about them.

In order to be approved (or even published - in some regions the publication of the Schedule is also carried out from some system) in its electronic incarnation, the Schedule should, ideally, be reconciled with the FCD plan (with its electronic incarnation) , obtain the approval of the founder, the main manager of budget funds, the financial authority, the authority responsible for the implementation of procurement (the names are conditional and, depending on the specific structure, someone may be excluded from this list or, conversely, added). And the absence of a Schedule on the site may mean that it has not passed this multi-stage control system.

A small digression-explanation:

A “multi-stage control system” sounds rather pathetic and, of course, many of those who used these systems or even took part in their development can tell a lot about the “correct and trouble-free” operation of such systems, the “high” qualification of operators, and the fact that such systems in some remote rural settlement is also highly doubtful - but this is a completely separate issue. The systems are there, they work (well or not), the control is there (good or not), and the presence of errors often leads to even greater difficulties in using such systems. One can still speculate on the topic of what universal informatization is - evil or good, but this is also a separate issue.

Why didn't it pass? The reasons - both related to your purchase and not related - can be many. And if the Schedule is published, but contains errors, then it may be necessary to make changes, the approval of which may take a couple of minutes somewhere, and somewhere stretch for an indefinite period. In the previous article it was mentioned that making changes and agreeing on the FCD plan may not be a quick matter at all - a similar situation with the Schedule. And it is often necessary to coordinate not only paper versions, but also electronic ones.

So after all, we saw that now the Schedule can generally consist of one or two lines, where all the articles of KOSGU are piled up in one heap - what is there to agree on? Well, if they transfer funds from one article to another - the total amount will not change? Maybe. But in most cases, in its electronic incarnation, the Schedule is still detailed at least to the level of KOSGU (in order to ensure interconnection with the FCD plan), and at most to the level of a separate purchase, so you will have to make and agree on changes: whether in a paper version (if its existence and coordination are provided for by some regulation), whether electronically, or both at once.

How are Procurement and Schedule related? Of course, part 11 of Article 21 of the 44-FZ (this article is just devoted to Schedules), which states that “purchases that are not provided for by schedules cannot be carried out”, comes into force only from 01/01/2017, and there is no direct prohibition (although this does not mean that the customer will not receive a cap in the event of a check), but there is one important practical consideration: in many cases, computerization has reached here, and without a FCD plan - there is no Schedule, without a Plan - schedule - no purchase.

Have you forgotten about the promises yet? So, when a customer discusses a certain purchase with you - often for him it is only its embryo, an embryo. Accordingly, for you, this is all the more not a purchase and not even an embryo, but a kind of prototype of a possible, potential work. Because if the purchase is not provided for by either the FCD plan or the Schedule, then we are dealing with a promise of a promise of a promise. And if in Russian, then (a promise to provide money in the plan for financial and economic activity (a promise to allocate money for a purchase (a promise to carry out this purchase))). Such is the promise in the third degree. It would be nice to shorten it, however, the abbreviation LLC has long been firmly occupied, and O3 will be associated with an ambulance or with a well-known wizard ... But still, let's try: we don't seem to have to mention limited liability companies - so let it be OOO.

Do you think it makes sense to seriously invest at the LLC stage (in terms of effort, time, money or material resources) in the purchase itself? For example, start writing code or purchase some equipment? It's up to you: situations are different, and customers are different, and everything else is different. But it is necessary to understand that you are still only at the LLC stage. And there are still stages of development / approval of the terms of reference, discussion, and only then the conclusion of the contract.

Chapter 4. Possible problems and their causes

Let's take a look at several combinations of promises based on the relationship outlined at the beginning of the chapter. When we talk about the Schedule, we believe that it allows you to determine the fact of the presence / absence of information on the procurement - either posted in the old format, or posted in a new one, but with details.

Situation 1. There is no information either in the FCD plan or in the Schedule - a typical LLC:
1.1) Perhaps the customer simply did not have time or forgot to make changes to both documents.
Solution: ask the customer for clarification and wait for the purchase of interest to us to appear there.

1.2) It is possible that there is no money now, but there will be later. Typically, this means that the customer has already been puzzled by the problem and requires hourly/daily/weekly (underline as appropriate) progress reports in preparation for how he will do this work.
Solution: similar to 1.1.

1.3) It is possible that there is simply no money, but then they will appear (or not), but it must be done at any cost and now.
Solution: as they say - no comment. We will talk about what this situation can lead to in one of the following articles, but for now, we are acting according to option 1.1.

1.4) It is possible that the customer is just getting ready to plan a purchase (for the next quarter/semester/year) is also a likely option, but in this case, the customer, in a good way, should have told you this initially. Why? More about this - in one of the following articles, but for now briefly. If you remember, in the boundary conditions, we determined that the customer approached us with an offer to work and said that the contract would be concluded without bidding. And if the purchase is only planned, then very often the customer himself still does not really know whether it will be included in the FCD plan or not. Whether to participate in this process and how deeply - you decide. But in order to make an adequate decision, you must have information that the purchase is still at the planning stage - and it is not very fair for the customer to remain silent about this.
Decision: it is entirely up to you - only you can determine the acceptable degree of your involvement in the planning process and the costs resulting from this (financial, time s x and others).

Situation 2. The information is in the FCD plan, but not in the Schedule:
2.1) The customer did not have time / forgot to make changes to the Schedule.
Solution: wait for the customer to make changes, because this process, as we have already seen, can be far from simple and not at all fast.

2.2) There is money, but the customer has not yet decided on the method of determining the supplier (or has decided, but you will not like it).
Solution: wait until the customer is determined. At the beginning of this article, it was already mentioned that there are even several reasons for purchasing from a single supplier, but there are also competitive methods ... You cannot decide for the customer, and you are not aware of the situation as a whole (at this stage there is not enough information yet), so the solution is to wait.

Situation 3. The information is in the Schedule, but not in the FCD plan.
This should not be. Either someone messed up something (and then it needs to be unraveled now so as not to have bad consequences with a long wait later), or ... the customer provided for the purchase, but did not provide funding for it.
Solution: clarify the situation with the customer, and a little more about this in one of the following articles.

Situation 4. Information is available both in the FCD plan and in the Schedule.
Everything is fine (as far as possible), but you still should not relax.

As you can see general rule for most cases: in any incomprehensible situation- go to bed if something seems strange - it's better to wait and try to clarify the situation with the customer.

What are we all waiting for and waiting for? And when to work? There is a crisis in the yard, there is no money, but you hang on there, and we are engaged in research.
You can start right now. Seriously. Or tomorrow. Or in a week. Or not start at all. Because the decision is yours and yours alone. But first, remember that we are still just sorting out some of the intricacies of working with budgetary institutions, we do not have full information, and we specifically consider the situation from the point of view of possible complications (by the way, at the end of the article under the spoiler - answers to some possible questions that have migrated from previous article).

What about business risk? Has anyone canceled it? And in general: “risk is a noble cause”, “who does not take risks does not drink champagne”, etc. and so on.
Didn't cancel. But everyone determines the acceptable degree of risk for himself - with or without taking into account the situation. And if a jump from a high cliff into the water without a preliminary survey of the bottom is not the most good idea(naturally, according to the author), then a similar jump made to save from a forest fire is a completely acceptable risk (again, according to the author).

And if the customer is proven and reliable?
Yes, a customer can be proven a hundred times over and concretely reliable, but who can guarantee, for example, that your customer's director won't change tomorrow? And you know perfectly well that not only the very possibility of a purchase, but also the sanity of the terms of reference, the conscientiousness and timeliness of payment, and much more often depend on the personality of the director, his ability to defend his position before higher authorities.

And if ( a thousand and one reasons not to find out and wait, but to start working)? Can we work now?
You decide:

I will accept all teachings, suggestions,
I will take all the instructions on the road.
It's up to me to decide
That no one can take for me.
A.T. Tvardovsky, "Before the road"

A little advice: since any changes to the FCD plan or Schedule can take a lot of time, it would be better if the customer takes care of this issue in advance.
But don't we care? Let at least a year make their changes and agree.
If the changes are agreed upon for a year, then you may have to wait the same amount of money (unless you decide to go to court). The fact is that in its full form, the chain discussed above “without a FCD plan - no Schedule, without a Schedule - no purchase”, very often contains several more links: no purchase - no contract, no contract - no obligation, no obligations - it is impossible to make payment under the contract, but more about this - another time.

Conclusion

1. The law, in accordance with which the customer makes a purchase, imposes certain restrictions on both the customer and the contractor.
2. Procurement without competitive procedures is possible (although not always) and can be carried out by the customer for various reasons.
3. Open sources of information can help here too.
4. The FCD Plan and the Schedule are interconnected (the nature and closeness of this connection depend on many factors), which, on the one hand, strengthens control, and on the other hand, creates difficulties in making changes.
5. The LLC stage is not a reason to get to know each other. best time to start work.

In the next series

- the path from promise to obligation is long;
- contract - myth or reality;
- pitfalls of technical specifications;
- KOSGU as a time bomb;

P.S. and answers to some possible questions read here:

P.S. Naturally, the author does not bear any responsibility for any losses incurred by you, your relatives, friends, colleagues, pets, your organization, your counterparties and all other third parties, due to your inaction or any actions taken under the influence of this article, so and without taking it into account, in accordance with the material presented or contrary to it.

1. Are the considered methods obligatory, necessary and sufficient?

In no case. The author of the article offers only a few more tools for obtaining additional information, which can be useful when making a decision about working with a customer. Whether to use these tools, how often and how, whether the information obtained in this way can be trusted and how to interpret it is up to you.

2. And what, with each customer is so tormented?

Of course not. Eat great amount other factors affecting the situation. For someone, a contract for 100 thousand rubles. - a trifle in the general flow of contracts, but for someone - a very serious and responsible event. Someone prefers to defend their interests in court (and has extensive experience in this), but for someone it is easier to resolve issues in court. pre-trial procedure. Someone is ready to prove anything in any court - and therefore does not bother drawing up a detailed technical assignment or honing the wording of the contract, while someone prefers that every little thing be documented. People, organizations, situations are different, the required labor costs are also different. Therefore, it is up to you to decide.

3. Maybe it's easier not to work with budgetary institutions at all?

First, we are here consciously considering the situation from the point of view of possible problems. Second, who said that commercial establishments work easier? There, too, there is such an array of difficulties that mom do not worry. And thirdly: “If you don’t have a home, fires are not afraid of him ...”.

4. Is the article telling the truth, the whole truth and nothing but the truth? Can't be wrong?

First, we are all human and we all make mistakes. Secondly, legislation tends to change, and often at a fairly rapid pace. Thirdly, it is impossible to foresee all the circumstances within the framework of the article: it is required to study a specific situation. Fourth, there are controversial, ambiguous issues on which there are different opinions - this should also be taken into account. Fifthly, the author could simply miss something.

In any case, if something confused you, write about it in the comments or through personal messages: it depends on how reliable, relevant and versatile the information presented in the article is.

5. Is it possible to consider the question of (the content of the question) in a separate article?

The author is still a little worried about the size of the resulting articles, so please take part in a short survey.

In the contract concluded by a budgetary institution, extra-budgetary funds (compulsory medical insurance funds) are indicated as a source of funding. Currently, it is planned to pay for the contract at the expense of budgetary funds. Can the customer make changes to the contract and change the source of funding? Is it necessary to specify the source of financing in the contract?

According to Part 1 of Art. 34 of the Federal Law of 05.04.2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ), the contract is concluded on the terms stipulated by the notice of procurement or an invitation to take part in determining the supplier (contractor, performer) (hereinafter referred to as the counterparty), procurement documentation, application, final offer of the procurement participant with whom the contract is concluded, except when, in accordance with Law 44-FZ, these documents are not provided. Part 2 of Art. 34 of Law N 44-FZ establishes a ban on changing the terms of the contract, with the exception of cases provided for by Art. 34 and Art. 95 of Law N 44-FZ.

In paragraph 2 of Art. 42 of Law N 44-FZ states that the notice of procurement should contain, unless otherwise provided by Law N 44-FZ, among other things, a summary of the terms of the contract, including the source of funding. An indication of the source of funding is mandatory (see, in particular, the answer to question 2 in the letter of the Ministry of Economic Development of Russia dated December 29, 2014 N D28I-2845).

From the foregoing, we can conclude that information about the source of financing is a condition of the contract, along with, for example, the quantity of goods and the delivery time, and is not subject to change otherwise than in the cases provided for by Law N 44-FZ.

At the same time, in our opinion, when considering the possibility of making changes to the contract mentioned in the analyzed case, it is necessary to take into account the norms of the Civil Code of the Russian Federation on which Law N 44-FZ is based (part 1 of article 2 of this Law). System analysis of Art. 307, 432, 525, 763 of the Civil Code of the Russian Federation allows us to conclude that the actual terms of the contract, in accordance with which the parties have their rights and obligations, include the name, characteristics and quantity of goods supplied (the amount of work performed, services provided), place, term of delivery (delivery) of goods (performance of work, provision of services), information on the price of the contract and costs included (not included) in it, terms and conditions of payment for the supply of goods (performance of work, provision of services). In our opinion, it is these conditions by virtue of Art. 34, 95 of Law N 44-FZ cannot be changed by agreement of the parties or unilaterally.

The indication of the source of financing is not actually a condition of the contract, since it does not affect the rights and obligations of the parties under the contract in any way and, in fact, does not depend on the will of the parties (it is not subject to agreement). In essence, such an indication is simply an informational message (see, for example, the decision of the Fourteenth Arbitration Court of Appeal of 04/02/2015 N 14AP-709/15).

Therefore, in our opinion, the conclusion of an additional agreement to amend the information on the source of financing in the contract will not contradict the provisions of Law N 44-FZ.

The foregoing is indirectly confirmed by the arbitration practice established during the period of the Federal Law of July 21, 2005 N 94-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs", which regulated the same relations as Law N 44 -FZ, and recognizing the legitimacy of changing, by agreement of the parties, the indication of the source of financing in contracts concluded as a result of the auction (see, for example, the decisions of the Federal Antimonopoly Service of the Central District dated 18.01.2011 N F10-6260/2010, the Federal Antimonopoly Service of the Volga District dated 05.25. -2096/11; of the last decision to the Presidium of the Supreme Arbitration Court of the Russian Federation for review by way of supervision was denied)). However, in relation to contracts concluded in accordance with Law N 44-FZ, it is impossible to completely exclude the risk of recognizing as unlawful amendments to the contract regarding the indication of the source of financing, in our opinion, due to the lack of unambiguous evidence to the contrary in the available this moment law enforcement practice.

At the same time, it should be borne in mind that in accordance with one of the principles of the contract system - the principle of openness and transparency - the information provided for by Law N 44-FZ and posted in a single information system (and before it is put into operation - on the official website) must be complete and reliable. In particular, documents and information included in the register of contracts concluded by customers (part 4 of article 103 of Law N 44-FZ), including information on changing the contract and information on the source of financing, are subject to posting on the official website (p.p. 2, 8 and 9, part 2, article 103 of Law N 44-FZ). In this regard, it seems appropriate (regardless of whether the actual change in the source of funding is accompanied by the introduction of appropriate changes to the contract) by the customer to send information about the change in the source of funding to the Federal Treasury for inclusion in the register of contracts (part 3 of article 103 of Law N 44-FZ ).