The contractor did not attract the small medium business to execute the state contract - there will not be a fine for changing its conditions

The customer's counterparty failed to comply with the requirement of the state contract to attract subcontractors from the small medium business and social oriented non-profit organization number to its execution. The antimonopoly body considered that such actions are a change in the terms of the contract, not stipulated by the legislation on the contract system, and "fined" the contractor for 200 thousand rubles.

The AC of the Central District did not agree with the FAS. The court pointed out that improper performance of a contract can not be regarded as a change in its conditions. So, there is no basis for administrative responsibility under Part 4 of Art. 7.32 of the Administrative Code of the Russian Federation.

Despite the approach of the court, it is better to comply with the requirement to attract small medium business and social oriented non-profit organization, since for its violation in the contract there should be a fine. In addition, the Code of Administrative Offenses of the Russian Federation establishes liability for non-fulfillment of obligations under the contract. In this situation it is difficult to apply it. For example, it will be necessary to prove significant harm to the legitimate interests of society and the state. However, it can not be ruled out that the antimonopoly authority will be able to do this.

Document: Resolution of the AU of the Central District of 09.11.2017 in case No. A09-2606 / 2017