The Ministry of Finance answered current questions in connection with the pandemic and other issues in public procurement
What to do with the contract if due to the pandemic it is no longer necessary, can I participate in the Commission meeting remotely, when it is impossible to deliver an improved product even with the consent of the customer, can I pay a penalty at the expense of a Bank guarantee?
What to do with the state contract, if its execution is no longer necessary due to the pandemic
The Ministry said that in connection with the coronavirus to the Law N 44-FZ was amended, according to which you can change the execution time, the size of the advance, the contract price, and for procurement with an unknown amount — the unit price of LABOR. This option was not provided for the quantity of goods and scope of work or services.
If the customer no longer needs to supply goods, perform works, or provide services provided for in the contract, the Agency recommends that the contract be terminated by agreement of the parties. In this case, the customer needs to pay for the actually executed part of the contract.
Can members of the Commission participate in the meeting via videoconference
The Ministry of Finance explained that the personal presence of members of the Commission at its meeting is a mandatory requirement of the law. The Law N 44-FZ does not provide for the possibility of participation in the meeting of members of the Commission in the form of a video conference call, as well as subsequent registration and signing of the minutes of meetings of the auction Commission in the form of an electronic document.
Is it possible to change the contract a legal entity at the expense of grants under part 65 of article 112 of the Law # 44-FZ due to the effects of coronavirus
The Ministry of Finance noted: legal entities carry out procurement for the grants in accordance with the Law N 44-FZ in part of determination of suppliers (contractors, executors) and contracts. The provisions of Law n 44-FZ regulating the specifics of contract performance do not apply to such purchases. Accordingly, the amendments that make it possible to change the contract in connection with coronavirus did not affect the purchase of legal entities through subsidies.
Can I pay the penalty using the Bank guarantee funds
The Ministry of Finance noted that a Bank guarantee and a penalty are equal and independent ways of securing obligations under a contract. The Bank guarantee ensures proper performance of the main obligation, and the contractor pays the penalty for improper performance or non-performance of the main obligation.
Thus, the penalty cannot be paid at the expense of the Bank guarantee, since it is a non-basic obligation under the contract, the performance of which is secured by a Bank guarantee.
In which case you can't deliver an improved product
According to the Law N 44-FZ, when performing the contract, the customer and the supplier can agree on the delivery of goods with improved characteristics. At the same time, the law does not set specific parameters that would allow us to assess whether the product is improved relative to the requirements of the contract.
The Ministry of Finance believes that the customer should evaluate this independently. Note that practice confirms this position.
However, we must note the following: if the object of purchase apply prohibitions, restrictions and conditions of admission of goods from foreign countries, nacerima rules may provide for cases in which the customer when the contract is not entitled to prevent the replacement of the goods or country of origin.
Can I change the information about the source of funding in the contract
The Ministry of Finance clarified that if the information about the source of funding does not affect the mutual obligations of the parties, on which an agreement should be reached, then such conditions are not material and can be changed by agreement of the parties.
Documents:
Letter of the Ministry of Finance dated 05.06.2020 N 24-03-08/48635
Letter of the Ministry of Finance dated 26.03.2020 N 24-03-08/24024
Letter of the Ministry of Finance dated 17.02.2020 N 24-03-08/10935
Letter of the Ministry of Finance dated 26.02.2020 N 24-03-08 / 13531
Letter of the Ministry of Finance dated 05.03.2020 N 24-01-07 / 16472
Letter of the Ministry of Finance dated 05.06.2020 N 24-01-07 / 48634