Supreme Court of the Russian Federation: loss of interest in the purchase is not a reason to cancel the contract with the winner under Law No. 223-FZ
The customer posted a protocol on the refusal to conclude a contract with the winner. Instead of the reasons, he indicated a clause in the procurement regulations with the right to do so (for example, when mistakes were made in the procurement documents and because of them it is impossible to meet the needs of the customer).
The supervisors did not support this decision:
refusal to conclude a contract means the cancellation of competitive procurement;
after the deadline for cancellation of the purchase and before the conclusion of the contract, this can be done only under circumstances of force majeure. In this case, there are none.
The winner sent the contract and its enforcement to the customer, but he did not sign the document.
In court , the customer explained:
according to the procurement regulations, it is possible not to sign a contract with the winner;
the requirements for the object of purchase have become different. The procurement documents were initially drawn up with errors;
the contract on new terms has already been signed and executed;
it is impossible to conclude a deal with the winner due to lack of finances.
The courts of three instances considered that there were no reasons not to conclude a contract with the winner: the
customer did not prove that he canceled the purchase under circumstances of force majeure;
loss of interest in the contract and financial difficulties of the customer is not a reason not to sign it with the winner;
the actions of the customer cause damage to the winner in the form of lost profits. He planned to start work and did not enter into other transactions, because he could not fulfill several orders at the same time;
the purchase was canceled only 5 months after its start. The contract was signed on new terms immediately after the requirements for its object changed. The customer acted in bad faith and unreasonably.
The Supreme Court of the Russian Federation did not reconsider the case.
Document: Definition of the Armed Forces of the Russian Federation from 09.11.2021 N 303-ES21-20752