A review of the practice of the district courts for disputes in procurement according to the Law N 44-FZ
The participants of the procurement
For wrongful change in the terms of the contract, the supplier faces an administrative fine
As a result of the auction, a contract for the supply of fuel was signed. During its execution, the parties increased the volume of goods and the price of the contract, but neither the procurement documentation nor the contract itself provided for such a change. In addition, the price increased by more than 10%.
For illegal change of the terms of the contract control on supplier fined 200 thousand rubles (part 4 of article 7.32 of the administrative code). The court supported the inspectors.
Document: Decision of the Arbitration court of the Moscow district of 11.07.2019 in case N A40-250944/2017
If the customer has not notified in advance of the lack of funding, he is obliged to pay for the work
The customer refused to pay for the work performed due to lack of money. In court, he referred to the fact that under the terms of the contract, the contractor had to wait for notification of the availability of funding and only then start work.
The court supported the contractor, noting that it had notified the employer in advance of the commencement of the work, but the employer had not given instructions to suspend the work. The customer accepted the work without comment and only then said that the work should be suspended due to lack of funding. The current legislation does not contain provisions according to which the payment of already performed works may depend on the availability of budget financing of the customer.
Document: Ruling of the Arbitration court of the Central district from 11.07.2019 in the case of N А84-2529/2018
Customers
The customer is not obliged to specify additional government requirements to the Bank guarantee in the documentation
The customer established in auction documentation of the requirement to the Bank guarantee provided by the Law N 44-FZ. The Antimonopoly authority recognized it as violation: besides the requirements specified in the law, it is necessary to register the additional requirements fixed by the Resolution N 1005.
The court overturned the decision of the Antimonopoly authority. The resolution N 1005 is officially published, is in open access, therefore, to duplicate it in documentation it is optional. Additional requirements to the Bank guarantee must be fulfilled regardless of whether the customer specified them in the documentation or not.
Document: Ruling of the Arbitration court of Volga region district from 28.06.2019 in the case N A65-29037/2018
For failure to comply with the warranty can be charged a fine
During the warranty period the contractor laid the asphalt and curbs were in disrepair. The contractor refused to repair the defects. He believed that bears no warranty, because even when the contract warned the customer that puts asphalt in violation of the technology.
The court supported the customer and noted that the contractor is a professional market participant, has special knowledge and is responsible for the quality of work. The contractor was aware of the violation of technology, but the work continued, so it is not entitled to refuse to fulfill the warranty. In favor of the customer, a fine was collected and the contractor was obliged to eliminate the shortcomings.
Document: Decision of the Arbitration court of the Ural district of 10.07.2019 in case N A34-9301/2018
In another case, the contractor also refused to remedy the deficiencies of the work. The court has appointed examination, which confirmed that the defects occurred because of the violation technology in the construction of the Playground. To the contractor recover the penalty for failure to perform warranty obligations.
Recall, from July 1, customers are required to require the provision of performance of warranty obligations.
Document: Ruling of the Arbitration court of Volga region district from 07.06.2019 in the case N A12-14650/2018
To recover the overpayment will not work if the customer has incorrectly calculated the cost
The accounts chamber found that the customer overpaid under the contract about 13 million rubles. the Reason was the wrong calculation of the cost of materials. The price considered for price lists, while those materials approved rates. In addition, the cost included extra costs.
The employer attempted to recover the overpayment from the contractor.
The court refused the claim, stressing that the acts were signed without comments, the price was calculated and checked by the customer himself. The works were actually performed, their volume and cost correspond to the contract, therefore, the contractor was entitled to payment at the contract price.
Document: Decision of the Arbitration court of the West Siberian district of 08.07.2009 in the case N A81-8809/2018