It is impossible to set penalties in the contract in a larger amount than provided for by Law No. 44-FZ
The customer in the draft contract established the amount of penalties above their value according to Law No. 44-FZ. The controllers recognized this as a violation.
The first and appellate instances supported the customer. In support of their position, they referred, among other things, to the review of judicial practice, which they approved before the amendment of Part 7 of Article 34 of Law No. 44-FZ: until May 12, 2019, the lower limit of liability in the form of penalties was normal.
In the review, the Judicial Board of the Supreme Court of the Russian Federation, with reference to the norm of the Civil Code of the Russian Federation on the possibility of increasing the amount of the penalty, decided that penalties higher than under Law No. 44-FZ are permissible. The amendment of Part 7 of Article 34 of Law No. 44-FZ does not affect this possibility.
The cassation took a different position:
at the time of purchase, the amount of the penalty was fixed. It cannot be increased unilaterally;
since the purchase was carried out according to Law No. 44-FZ, its norms are in priority. They need to be applied because they are special in relation to the provisions of the Civil Code of the Russian Federation.
The RF Armed Forces did not review the case.
Note that in practice there is another opinion.
Document: Definition of the Armed Forces of the Russian Federation of 25.01.2022 N 302-ES21-22811