State order: we asked - we answer: the essential terms of the contract, the establishment of specific rates for penalties, fines, and more. State order: we asked - we answer: the essential terms of the contract, the establishment of specific rates for penalties, fines and other D28i 2286

1. In accordance with paragraph 2 of Article 425 Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation), the parties have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement, unless otherwise established by law or follows from the essence of the relevant relations.

According to paragraph 3 of Article 3 of Law N 44-FZ, the procurement begins with the identification of the supplier (contractor, performer) and ends with the fulfillment of obligations by the parties to the contract.

In accordance with paragraph 2 of Article 3 of Law N 44-FZ, the definition of a supplier begins with the placement of a notice of the procurement of goods, work, services to meet state needs ( federal needs, the needs of the constituent entity of the Russian Federation) or municipal needs, or in the cases established by Law N 44-FZ, from sending an invitation to take part in determining the supplier (contractor, performer) and culminate in the conclusion of a contract.

Thus, the application of the provisions of paragraph 2 of Article 425 of the Civil Code of the Russian Federation is not possible to relations regulated by Law N 44-FZ, due to the fact that legal obligations between the customer and the supplier begin exclusively from the moment the contract is concluded.

2. Law N 44-FZ does not disclose the content of the concept " essential conditions"of the contract. At the same time, Article 34 of Law N 44-FZ defines the mandatory conditions for the execution of the contract.

Considering that the legislation of the Russian Federation on the contract system in the field of procurement is based, among other things, on the provisions of the Civil Code of the Russian Federation, a contract concluded under Law No. 44-FZ must contain the mandatory conditions provided for in Article 34 of Law No. 44-FZ, and comply with the requirements established by the Civil Code of the Russian Federation, depending on the subject of the contract.

3. In accordance with Part 1 of Article 34 of Law N 44-FZ, the contract is concluded on the terms provided for in the notice of procurement.

According to paragraph 2 of part 1 of article 42 of Law N 44-FZ, the notice of implementation contains, among other things, information about the source of funding.

When concluding and executing a contract, changing its terms is not allowed, with the exception of cases provided for in Article 34 of Law No. 44-FZ and Article 95 of Law No. 44-FZ.

According to paragraph 2 of clause 1 of Article 432 of the Civil Code of the Russian Federation, the conditions on the subject matter of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, according to the application of one of the parties, should be an agreement has been reached.

Thus, according to the Department for the Development of the Contract System of the Ministry of Economic Development of Russia, a change in the source of financing during the execution of the contract is a significant change.

4. In accordance with clause 8 of part 1 of article 93 of Law N 44-FZ, the purchase from sole supplier(contractor, performer) can be carried out by the customer, including for the provision of services for water supply, water disposal, heat supply, gas supply (with the exception of services for the sale of liquefied gas), for connection (connection) to engineering networks according to regulated in accordance with the legislation of the Russian Federation Federation prices (tariffs).

In addition, in accordance with paragraph 23 of part 1 of article 93 of Law N 44-FZ, the purchase from a single supplier (contractor, performer) can be carried out by the customer in the event of a contract for the provision of services for the maintenance and repair of one or more non-residential premises transferred for free use or operational management to the customer, services for water, heat, gas and energy supply, security services, services for the removal of household waste in the event that these services are provided to another person or other persons using non-residential premises located in the building in which the premises transferred to the customer for free use or operational management are located.

Thus, Law N 44-FZ defines the features of procurement in the field of public services.

5. Regulations on the preparation and placement in a single information system in the field of procurement, the report on the execution of the state (municipal) contract and (or) on the results of a separate stage of its execution (hereinafter referred to as the report) was approved by Decree of the Government of the Russian Federation of November 28, 2013 N 1093 (hereinafter referred to as the Regulation).

In accordance with paragraph 7 of the Regulations, when generating a report on the results of the execution of a separate stage of contract execution, information is filled in the corresponding columns of the report on an accrual basis from the beginning of the year in which the execution of a separate stage is carried out, to the date of execution of a separate stage of contract execution.

The functionality of the official website provides for the possibility of generating a report on the execution of a state (municipal) contract and (or) on the results of a separate stage of its execution by creating a new report during the execution of each stage of the contract, as well as by amending (editing) the previous report on the execution of a separate stage execution of the contract in accordance with the sequence number of the report change.

Thus, the procedure for generating a report on the execution of a state (municipal) contract and (or) on the results of a separate stage of its execution on the official website is carried out in one of the above ways.

6. At the same time, Law No. 44-FZ does not establish a requirement to provide information on the name of the country of origin of goods in accordance with the All-Russian Classifier of the Countries of the World, approved by the Decree of the State Standard of Russia dated December 14, 2001 N 529-st.

Thus, if the procurement participant indicated in the procurement application information about the country of origin of the goods, such as "USA", "RF" or other generally accepted abbreviation of the country name, which is not provided for by the all-Russian classifier of countries of the world, but which allows unambiguous identification of this country of the world, such an application cannot be rejected on the basis of failure to provide information about the name of the country of origin of the goods.

7. In accordance with clause 1 of part 3 of article 66 of Law N 44-FZ, the first part of the application for participation in electronic auction when concluding a contract for the supply of goods, in respect of which the documentation of such an auction contains an indication of the trademark (its verbal designation) and the name of the country of origin of the goods, may contain only the consent of the auction participant to the supply of goods with such a trademark.

When concluding a contract for the supply of goods in respect of which the documentation of such an auction contains an indication of a trademark (without indicating the country of origin), the first part of the application for participation in an electronic auction must contain the consent of the auction participant to supply goods with such a trademark and the name of the country the origin of the goods.

8. If a participant in an electronic auction offers for delivery a product that is equivalent to a product, in respect of which the auction documentation contains an indication of the trademark (its verbal designation) (if any) and the name of the country of origin of the product, the first part of the application for participation in electronic auction must contain consent to the supply of an equivalent product, as well as specific indicators of the product corresponding to the equivalence values established by this documentation and an indication of the trademark (its verbal designation) (if any), (paragraph 1 of part 3 of article 66 of Law N 44-FZ ).

If you are a user of the online version of the GARANT system, you can open this document right now or request hotline in system.

Dear customers, do you remember how our management fined you for the fact that you referred only to the Government Decree for penalties and fines in contracts and sincerely did not understand why we were fined you.

Here is your answer:

Another actual question: can it be applied to contracts under 44-FZ 425-GK

In accordance with paragraph 2 of Article 425

According to article 3, paragraph 3

In accordance with article 3, paragraph 2

paragraph 2 of Article 425 law

Question: what are the "essential terms of the contract under 44-FZ" and an indication of the source of funding - is this an essential condition?

article 34

GC law article 34 GC

In accordance with part 1 of article 34

According to point 2 of part 1 of article 42

article 34 Law N 44-FZ and article 95 Law N 44-FZ.

According to paragraph 2 of paragraph 1 of Article 432

Here is your answer:

In the case when the amount of the fine is not determined, the condition of the penalty for improper performance of obligations under the contract is recognized as inconsistent.

The court of cassation came to this conclusion by refusing to the customer to recover a fine from the contractor who violated the terms of the contract.

According to the concluded contract, the parties are liable for non-fulfillment or improper fulfillment of its conditions. At the same time, the specific amount of the fine, calculated, among other things, taking into account the legislation on the contract system, was not provided for in the contract.

The court also took into account that the customer did not prove the fact of improper performance by the counterparty of the terms of the contract.

Document: Resolution of the AC of the North-Western District of 10/14/2015 in case N A56-73983 / 2014

Another topical issue: is it possible to apply to contracts under 44-FZ 425-GK

In accordance with paragraph 2 of Article 425 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the parties have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement, unless otherwise established by law or follows from the essence of the relevant relations.

According to article 3, paragraph 3 Law N 44-FZ, procurement begins with the identification of the supplier (contractor, performer) and ends with the fulfillment of obligations by the parties to the contract.

In accordance with article 3, paragraph 2 Law N 44-FZ, the definition of a supplier begins with the placement of a notice of the procurement of goods, work, services to meet state needs (federal needs, the needs of a constituent entity of the Russian Federation) or municipal needs, or in cases established by Law N 44-FZ, by sending an invitation to take part in determination of the supplier (contractor, performer) and ends with the conclusion of the contract.

Thus, the application of the provisions paragraph 2 of Article 425 The Civil Code of the Russian Federation does not seem possible to relations regulated by law N 44-FZ, due to the fact that legal obligations between the customer and the supplier begin exclusively from the moment the contract is concluded.

Question: what are the "essential terms of the contract under 44-FZ" and an indication of the source of funding - is this an essential condition?

Law N 44-FZ does not disclose the content of the concept of "essential terms of the contract". However, in article 34 Law N 44-FZ defines the mandatory conditions for the execution of the contract.

Considering that the legislation of the Russian Federation on the contract system in the field of procurement is based, among other things, on the provisions GC Russian Federation, a contract concluded within the framework of law N 44-FZ, must contain the mandatory conditions provided for article 34 Law N 44-FZ, and comply with the requirements established GC RF depending on the subject of the contract.

In accordance with part 1 of Article 34 Law N 44-FZ, the contract is concluded on the terms provided for in the notice of procurement.

According to point 2 of part 1 of article 42 Law N 44-FZ notice of the procurement contains, among other things, information about the source of funding.

When concluding and executing a contract, changing its terms is not allowed, with the exception of cases provided for by article 34 Law N 44-FZ and article 95 Law N 44-FZ.

According to paragraph 2 of paragraph 1 of Article 432 The Civil Code of the Russian Federation is essential to the terms on the subject of the contract, the terms that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those terms regarding which, at the request of one of the parties, an agreement should be reached.

LETTER
dated August 3, 2015 N D28i-2286

The Department for the Development of the Contract System of the Ministry of Economic Development of Russia considered a letter on the application of the provisions of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ ) and reports.
1. In accordance with paragraph 2 of Article 425 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the parties have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement, unless otherwise established by law or follows from the essence of the relevant relations .
According to paragraph 3 of Article 3 of Law N 44-FZ, the procurement begins with the identification of the supplier (contractor, performer) and ends with the fulfillment of obligations by the parties to the contract.
In accordance with paragraph 2 of Article 3 of Law N 44-FZ, the definition of a supplier begins with the placement of a notice of the procurement of goods, work, services to meet state needs (federal needs, needs of a constituent entity of the Russian Federation) or municipal needs, or in accordance with Law N 44-FZ cases from sending an invitation to take part in the selection of a supplier (contractor, performer) and ends with the conclusion of a contract.

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MINISTRY OF ECONOMIC DEVELOPMENT OF THE RUSSIAN FEDERATION

1. In accordance with paragraph 2 of Article 425 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the parties have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement, unless otherwise established by law or follows from the essence of the relevant relations .
According to paragraph 3 of Article 3 of Law No. 44-FZ, the procurement begins with the identification of the supplier (contractor, performer) and ends with the fulfillment of obligations by the parties to the contract.
In accordance with paragraph 2 of Article 3 of Law No. 44-FZ, the determination of a supplier begins with the placement of a notice of the procurement of goods, work, services to meet state needs (federal needs, needs of a constituent entity of the Russian Federation) or municipal needs, or in accordance with Law No. 44-FZ cases from sending an invitation to take part in the selection of a supplier (contractor, performer) and ends with the conclusion of a contract.
Thus, the application of the provisions of paragraph 2 of Article 425 of the Civil Code of the Russian Federation is not possible to relations regulated by Law No. 44-FZ, due to the fact that legal obligations between the customer and the supplier begin exclusively from the moment the contract is concluded.

2. Law No. 44-FZ does not disclose the content of the concept of "essential terms of the contract". At the same time, article 34 of Law No. 44-FZ defines the mandatory conditions for the execution of the contract.
Considering that the legislation of the Russian Federation on the contract system in the field of procurement is based, among other things, on the provisions of the Civil Code of the Russian Federation, a contract concluded under Law No. 44-FZ must contain the mandatory conditions provided for in Article 34 of Law No. 44-FZ, and comply with the requirements established by the Civil Code of the Russian Federation, depending on the subject of the contract.

3. In accordance with Part 1 of Article 34 of Law No. 44-FZ, the contract is concluded on the terms provided for in the notice of procurement.
According to paragraph 2 of part 1 of article 42 of Law No. 44-FZ, the notice of the procurement contains, among other things, information on the source of financing.
When concluding and executing a contract, changing its terms is not allowed, with the exception of cases provided for in Article 34 of Law No. 44-FZ and Article 95 of Law No. 44-FZ.
According to paragraph 2 of clause 1 of Article 432 of the Civil Code of the Russian Federation, the conditions on the subject matter of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, according to the application of one of the parties, should be an agreement has been reached.
Thus, according to the Department for the Development of the Contract System of the Ministry of Economic Development of Russia, a change in the source of financing during the execution of the contract is a significant change.

4. In accordance with clause 8 of part 1 of article 93 of Law No. 44-FZ, the purchase from a single supplier (contractor, performer) may be carried out by the customer, including in terms of the provision of services for water supply, sanitation, heat supply, gas supply (with the exception of services for the sale of liquefied gas), for connection (connection) to engineering and technical support networks at prices (tariffs) regulated in accordance with the legislation of the Russian Federation.
In addition, in accordance with paragraph 23 of part 1 of article 93 of Law No. 44-FZ, the purchase from a single supplier (contractor, performer) can be carried out by the customer in the event of a contract for the provision of services for the maintenance and repair of one or more non-residential premises transferred for free use or operational management of the customer, services for water, heat, gas and energy supply, security services, services for the removal of household waste, if these services are provided to another person or other persons using non-residential premises located in the building in which the premises transferred to the customer for free use or operational management are located.
Thus, Law No. 44-FZ defines the specifics of procurement in the field of utilities.

5. The regulation on the preparation and placement in the unified information system in the field of procurement of a report on the execution of a state (municipal) contract and (or) on the results of a separate stage of its execution (hereinafter referred to as the report) was approved by Decree of the Government of the Russian Federation dated November 28, 2013 No. 1093 (hereinafter referred to as the Regulation).
In accordance with paragraph 7 of the Regulations, when generating a report on the results of the execution of a separate stage of contract execution, information is filled in the corresponding columns of the report on an accrual basis from the beginning of the year in which the execution of a separate stage is carried out, to the date of execution of a separate stage of contract execution.
The functionality of the official website provides for the possibility of generating a report on the execution of a state (municipal) contract and (or) on the results of a separate stage of its execution by creating a new report during the execution of each stage of the contract, as well as by amending (editing) the previous report on the execution of a separate stage execution of the contract in accordance with the sequence number of the report change.
Thus, the formation of a report on the execution of the state (municipal) contract and (or) on the results of a separate stage of its execution on the official website is carried out in one of the above ways.

6. At the same time, Law No. 44-FZ does not establish a requirement to provide information on the name of the country of origin of goods in accordance with the All-Russian Classification of the Countries of the World, approved resolution Gosstandart of Russia dated December 14, 2001 No. 529-st.
Thus, if the procurement participant indicated in the procurement application information about the country of origin of the goods as the USA, the Russian Federation or another generally accepted abbreviation of the country name, not provided for all-Russian classifier countries of the world, but allowing unequivocal identification of this country of the world, such an application cannot be rejected on the basis of failure to provide information about the name of the country of origin of the goods.

7. In accordance with paragraph 1 of part 3 of article 66 of Law No. 44-FZ, the first part of the application for participation in an electronic auction when concluding a contract for the supply of goods in respect of which the documentation for such an auction contains an indication of a trademark (its verbal designation) and the name of the country of origin of the goods may contain only the consent of the auction participant to the supply of goods with such a trademark.
When concluding a contract for the supply of goods in respect of which the documentation of such an auction contains an indication of a trademark (without indicating the country of origin), the first part of the application for participation in an electronic auction must contain the consent of the auction participant to supply goods with such a trademark and the name of the country the origin of the goods.

8. If a participant in an electronic auction offers for delivery a product that is equivalent to a product, in respect of which the auction documentation contains an indication of the trademark (its verbal designation) (if any) and the name of the country of origin of the product, the first part of the application for participation in electronic auction must contain consent to the supply of an equivalent product, as well as specific indicators of the product corresponding to the equivalence values established by this documentation, and an indication of the trademark (its verbal designation) (if any) (paragraph 1 of part 3 of article 66 of Law No. 44-FZ ).

At the same time, we would like to draw your attention to the fact that clarifications of a public authority have legal force, if this body is endowed, in accordance with the legislation of the Russian Federation, with special competence to issue clarifications on the application of the provisions of regulatory legal acts.
In accordance with the Regulations on the Ministry of Economic Development of Russia, approved by Decree of the Government of the Russian Federation of June 5, 2008 No. 437, the Ministry of Economic Development of Russia is not empowered to clarify the legislation of the Russian Federation.

Acting Director of the Department
development of the contract system
D.A. GOTOVTSEV

The Department for the Development of the Contract System of the Ministry of Economic Development of Russia considered an appeal on clarification of the provisions of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44 -FZ) and reports.

Decree of the Government of the Russian Federation of December 28, 2012 N 1466 approved the rules for providing persons in custody or serving a sentence of imprisonment, medical care in medical organizations of the state and municipal health care systems, as well as invitations for consultations of specialist doctors of the indicated medical organizations if it is impossible to provide medical care in institutions of the penitentiary system (hereinafter referred to as the Rules).

According to the provisions of paragraphs 1 and 16 of the Rules, these Rules determine the procedure for providing persons in custody or serving a sentence of imprisonment, medical care in medical organizations of the state and municipal healthcare systems (hereinafter referred to as medical organizations), as well as invitations for consultations of doctors - specialists of medical organizations if it is impossible to provide persons deprived of liberty with medical care in institutions of the penitentiary system.

The medical organization draws up and sends to the institution of the penitentiary system with which the contract is concluded, bills, invoices, acts of rendered medical services, on the basis of which the institution of the penitentiary system pays, in accordance with the contract, the expenses incurred by the medical organization for the provision of medical care.

According to part 3 of article 29 of the Federal Law of November 21, 2011 N 323-FZ "On the basics of protecting the health of citizens in the Russian Federation" (hereinafter - Law N 323-FZ) state system healthcare are:

1) federal executive authorities in the field of health protection and their territorial bodies, Russian Academy of Medical Sciences;

2) executive bodies of state power of the constituent entities of the Russian Federation in the field of health care, management bodies in the field of health care of other federal executive bodies (with the exception of the federal executive bodies specified in paragraph 1 of part 3 of article 29 of Law N 323-FZ);

3) subordinated to federal executive bodies, state academies of sciences and executive bodies state authorities of the constituent entities of the Russian Federation, medical organizations and pharmaceutical organizations, healthcare organizations for ensuring supervision in the field of consumer protection and human well-being, forensic institutions, other organizations and their separate divisions carrying out activities in the field of health protection.

The municipal health system consists of:

1) organs local government municipal districts and urban districts exercising powers in the field of health protection;

2) medical organizations and pharmaceutical organizations subordinate to local governments (part 4 of article 29 of Law N 323-FZ).

In accordance with clause 6 of part 1 of article 93 of Law N 44-FZ, in the event of the procurement of work or services, the performance or provision of which can only be carried out by the executive authority in accordance with its powers or subordinate to it government agency, state unitary enterprise, whose respective powers are established federal laws, normative legal acts of the President of the Russian Federation or regulatory legal acts of the Government of the Russian Federation, legislative acts of the relevant subject of the Russian Federation, the customer may purchase from a single supplier (contractor, performer).

Thus, if it is impossible to provide medical care to persons deprived of their liberty in an institution of the penitentiary system, such an institution has the right to conclude a contract with a state healthcare institution in accordance with paragraph 6 of part 1 of Article 93 of Law N 44-FZ.

At the same time, we would like to draw your attention to the fact that clarifications of a public authority have legal force, if this body is endowed, in accordance with the legislation of the Russian Federation, with special competence to issue clarifications on the application of the provisions of regulatory legal acts. In accordance with the Regulations on the Ministry of Economic Development of Russia, approved by Decree of the Government of the Russian Federation of June 5, 2008 N 437, the Ministry of Economic Development of Russia is not empowered to clarify the legislation of the Russian Federation.

Acting Department Director
development of the contract system

YES. gotovtsev

Document overview

The Government of the Russian Federation approved the rules for the provision of medical care to persons in custody or serving a sentence of imprisonment in medical organizations of the state and municipal health care systems, as well as invitations for consultations by specialist doctors of these medical organizations if it is impossible to provide medical care in penitentiary institutions.

The law on the contract system provides for the following. If the work (service) can be performed (provided) only by the executive authority or its subordinate institutions, state unitary enterprises, the customer may purchase from a single supplier (contractor, performer).

Thus, if it is impossible to provide persons deprived of liberty with medical care in a penitentiary institution, such an institution has the right to conclude a contract with a state healthcare institution.

At the same time, the customer has the right to make a purchase in advance by competitive methods of determining the supplier (contractor, performer), in which state and municipal institutions healthcare.

State order: we asked - we answer: the essential terms of the contract, the establishment of specific rates for penalties, fines, and more. State order: we asked - we answer: the essential terms of the contract, the establishment of specific rates for penalties, fines and other D28i 2286

LETTER dated August 3, 2015 N D28i-2286

Document overview

LETTER
dated August 3, 2015 N D28i-2286