Judicial practice under the Law N 44-FZ
Purchase participants
It is not always possible to cancel the decision to include in the register of unscrupulous suppliers if the FAS has not caused the case
The supplier violated the terms of the contract. The customer terminated the contract and sent information to the register of unscrupulous suppliers. In this situation, the FAS is obliged to consider the inclusion in the register of unscrupulous suppliers with the participation of the supplier. The court will cancel the decision on inclusion in the register of unfair suppliers if the supplier was not notified of the case.
However, if the contract is terminated by a court decision, the competition authority is not obliged to verify the information about the breach of contract and to hear the supplier.
Document:
As the resolution of the Central district from 22.08.2019 in the case of N A83-3242/2018
The decision as Severo-the Western district from 27.08.2019 in the case N A56-104002/2018
You can collect a fee from the Bank, if the guarantee is not needed
The winning company received a Bank guarantee to secure the contract, but it was never awarded.
The company recovered from the Bank part of the amount paid for the guarantee. The courts pointed to the following points:
1. Since the contract has not been concluded, the suspensive condition has not occurred (the risk covered by the Bank guarantee has not arisen).
2. Under the terms of the guarantee, remuneration is paid not only for the issuance, but also for the use of it. The warranty was issued for 549 days, but the company abandoned it after 76 days. Therefore, the amount of remuneration should be reduced.
Document: Resolution as for the Northwest district of 23.08.2019 in the case of N A66-14127/2018
Changing the postal address is not a reason for disagreement when signing the contract
The customer sent a draft contract to the sole bidder. Party the contract is not signed and sent the Protocol of disagreements with the requirement to change the mailing address. The customer recognized the participant evaded from the conclusion of the contract.
The court supported the customer and pointed out that the change of postal address is not the basis for the Protocol of disagreements. The court also took into account that the participant had transferred the security for the performance of the contract after the end of the term of signing the contract.
Document: Resolution of the AU Severo-the Caucasian district from 19.08.2019 in the case of N A53-25881/2018
The goods that you supply must fully comply with the terms of reference
The winner of inquiry of quotations had to put folders folders with a mustache with a length of 50 mm and supplied with a mustache with a length of 40-45 mm. the Customer refused acceptance and terminated the contract.
The court supported the customer. By participating in the request for quotations, the winner agreed to deliver the goods with certain characteristics. Consequently, he could not claim that the manufacturers did not manufacture such folders, or claim that the variance was negligible. The goods must comply with the functional purpose and characteristics established in the contract.
Document: Decision of AC of the West Siberian district from 02.09.2019 in the case N A27-26096/2018
Customers
The contract may be invalidated if the description of the object of purchase fits one brand of machine
The Prosecutor appealed to the court to recognize the auction and the contract for the supply of the car invalid. The reason was the incorrect description of the object of purchase by the customer: only one brand of the machine corresponded to the specified characteristics.
The court declared the auction and the contract invalid, ordered the customer to return the car, and the supplier — the money.
Document: Regulation AC East-Siberian district from 12.08.2019 in the case N A33-28316/2018
You can recover the difference if after the termination of the contract had to conclude a new one at a higher price
Upon termination of the contract, the customer entered into additional delivery contracts with another organization. Under the new conditions, the cost per unit of goods was higher (27.5 rubles instead of 16.6 rubles). The customer was able to recover the price difference from the original supplier through the court.
Document: Regulation AC far East district from 20.08.2019 in case N A73-19231/2018
Water consumption can be calculated by meters not specified in the contract
The water meter was removed for verification and repair. The water supply organization calculated the water consumption for the period of its absence according to the average monthly consumption and taking into account the capacity of the devices. The customer was obliged to pay about 2.5 million rubles.
The customer made his calculation. He determined the total consumption from meters not specified in the contract, but established within the limits of its operational responsibility (each building had a separate meter). The amount of payment was about 130 thousand rubles.
The customer's calculation was recognized as correct.
As noted by the appellate court, water suppliers have not proved that it could supply water to 2.5 million rubles. Formal calculation of water consumption, even based on the law leads to unjust enrichment of the water utility organization.
Document: Decision of AC of the West Siberian district from 29.08.2019 in the case of N A46-14482/2018
The term of inspection of the delivered goods is not included in the terms of delivery
When checking the contract, the Treasury considered that the goods were delivered late, and ordered the customer to collect a penalty from the supplier. The customer challenged this in court.
The invoices contained two dates: the first — when the supplier delivered the goods to the customer, the second — when the customer accepted the goods after inspection. Inspectors considered the second date as the moment of delivery.
The courts found this approach to be wrong. The supplier delivered the goods on time, as confirmed by the invoice (first date). The term of inspection of the goods by the customer did not depend on the actions of the supplier, so the date of delivery the court considered the date of transfer of the goods to the customer.
Document: Regulation AC East-Siberian district from 19.08.2019 in case N A58-13358/2018