Russian Armed Forces: if under the state contract goods aren't delivered, the customer can collect both a penalty, and a penalty fee from the supplier

The economic board of the Supreme Court has come to such conclusion.
Society in the time established by the state contract hasn't delivered goods. In this regard the state customer has unilaterally refused performance of the contract and has made the claim for collecting from the supplier of a penalty for non-execution of the contract, and also a penalty fee for delay of his execution.
The first instance has awarded only a penalty. The court has considered that the Law N 44-FZ excludes a possibility of charge of a penalty fee for inadequate execution or non-execution of the obligation. The state customer, proving the claim, I have pointed to non-execution of obligations therefore the court has considered the requirement about collecting a penalty fee unreasonable.
The appeal has agreed with such decision, having noted" the following. A penalty fee is collected when goods have actually been delivered, but with violation of term. In this situation goods haven't been delivered at all.
The cassation has supported conclusions of subordinate instances.
However the Supreme Court has repealed all judicial acts regarding refusal in collecting a penalty fee and has sent business for new consideration. According to economic board, non-execution of the obligation doesn't mean that it is impossible to add a penalty fee for delay. If goods aren't delivered at the scheduled time, then take place both violation of the state contract in general, and delay of execution of the obligation. It is counted from the moment of approach of delivery time about day of cancellation of the state contract in connection with unilateral refusal. Collecting only a penalty in this case doesn't redeem the creditor's situation.
We will remind, under the Law N 44-FZ the direction to the contractor of the requirement about payment of penalties (penalties, a penalty fee) - the state customer's duty. He has to make it if the supplier, the contractor or the performer allows delay of performance of obligations under the state contract, and also in other cases of their non-execution or inadequate execution.
If the state customer appears in a similar situation, the position of the Supreme Court will help it to prove requirements about collecting and a penalty, and a penalty fee.
Document: Definition of Russian Armed Forces from 3/9/2017 N 302-ES16-14360