The RF Armed Forces figured out the issues of payment for work under Laws NN 44-FZ and 223-FZ and in other problematic points
The Supreme Court issued a review of practice, in which it clarified: in what cases the contractor will be paid for work performed without an agreement, when the control body has the right to apply state enforcement measures, what should the winner do with the contract, the conclusion of which is suspended.
The contractor will be paid for the work performed despite the absence of a contract under Law N 223-FZ
The organization repaired the roof of the building and approached the customer for payment. He refused: the work was performed as a guarantee to a contract with a third party, according to which the organization acted as a subcontractor. The parties did not enter into a separate written agreement for the repair of the roof, so there are no grounds for payment. The society went to court.
The courts of the first two instances considered that the work should be paid. The cassation instance canceled their decision: the contract for the controversial work under Law N 223-FZ was not concluded.
The Supreme Court disagreed with the appeal. In its decision, the court of cassation relied on the legal position from the acts adopted within the framework of the legislation on public procurement. In this case, the legal relationship should have been regulated by Law No. 223-FZ.
These laws have different goals, principles and areas of regulation, which means that the legal consequences of performing work without a contract are also different.
According to Law N 223-FZ, the customer is responsible for compliance with the procurement rules. Consequently, it is unlawful to impose the consequences of violation of the procedure for concluding an agreement on the defendant and deprive him of the right to pay for the work performed.
It is impossible to collect the cost of additional costs without the consent of the state customer
The parties signed a contract for the reconstruction of the capital construction object. In the course of its execution, it became clear: transport costs are more than included in the estimate. The contractor has twice notified the customer of this. However, he refused to conclude an additional agreement and reimburse the costs: it is impossible to change the essential conditions of the state contract. The contractor went to court.
The courts of three instances satisfied the claims in part. However, the Supreme Court did not agree with them and sent the case for a new trial. He made, in particular, the following reasons:
the contractor requested to recover the cost of the works that were originally stipulated in the contract. However, he provided estimated prices that were different from those in the documentation; the terms of the contract were known to the contractor before its conclusion: the estimate and purchase documents were posted in the EIS; Law No. 44-FZ has restrictions on changing the contract price. The cost of additional costs exceeded the established limit; under the terms of the contract, all its changes are possible only by agreement of the parties, which are drawn up by drawing up an additional agreement. The customer did not agree to increase the cost of the work.
Note that in some cases, the courts can force the customer to pay without a contract. For example, this is possible in the following situations: the term of the agreement for the provision of services has expired, but the contractor continued to provide them by force of law. We are talking about communication services; additional work was required due to the current emergency in a limited time; the supply of additional goods has social significance and consumer value.
The antimonopoly body is not entitled to apply liability measures when issuing a warning
A participant in the procurement of OSAGO services complained about the winner's unfair behavior: in calculating the contract price, he did not take into account the necessary indicators affecting it, as well as the provisions of the documentation. The control body recognized the complaint as justified and issued a warning to eliminate the violations. To do this, the winner had to, among other things, transfer to the federal budget the amount of the insurance premium that was due to the winner under the contract.
The winner of the purchase went to court. The court of first instance supported the antimonopoly authority, but the appeal and cassation did not agree with them regarding the transfer of the insurance premium to the budget.
The Supreme Court upheld the appeal and cassation: the issue of guilt in the offense is not investigated when issuing a warning, only signs of violation of antimonopoly legislation are established. Guilt is assessed after a violation case is initiated.
The winner of a public procurement is not obliged to send a public contract for signing if its conclusion is suspended
The winner of the procurement did not agree with the terms of the draft contract and complained to OFAS. The department has suspended the purchase.
The winner signed the contract after reviewing the complaint, but the customer recognized him as evading: the deadline for signing the contract had expired.
The winner went to the supervisory authority, and then to the court. However, the courts did not support him: the deadline for concluding a contract is suspended for the customer, and not for the winner. The contract was not signed on time, its security was not provided, which means that it was legal to recognize the winner as evading.
The Supreme Court did not agree with them: due to the suspension of the conclusion of the contract, the term for its signing by the winner is also extended. Since the deadline has not been violated, the winner cannot be recognized as evading the conclusion of the contract.
Later, the antimonopoly authority tried to appeal this decision, but was refused.
Document: Review of the judicial practice of the Armed Forces of the Russian Federation N 2 (2020)