What can you cook from squid: quick and tasty

Before considering options for contract refusal, you need to carefully understand what is contract or hire military service. Working for the Ministry of Defense is very responsible and requires strict adherence to all the rules and regulations prescribed in the military regulations.

Persons who have turned 18 years old can work under a contract in the army. An age limit has been established for persons over forty years old, persons who are in stock. The vacancies are varied and narrowly specific in the military field.

In other words, contract service refers to work related to military activities. Since the work is very serious, the selection of candidates is carried out strictly according to the rules. The military commission has the right to refuse a candidate to work if he does not fit according to certain criteria.

What does

The contract is concluded on a voluntary basis. Any resident of the country, regardless of gender, can join the army.

Cases are widespread when soldiers who have completed their military service are offered to work for hire. An agreement called "Contract" is concluded between the parties.

A contract is a written document that is concluded between a citizen of the Russian Federation and the Ministry of Defense. The contract is legally binding. A contract is concluded between the parties in a certain form and strictly according to the rules, they are spelled out in the regulation. The contract specifies the time period and conditions under which the citizen is obliged to serve. The document clearly spells out the responsibilities of the two parties. The contract must spell out the rights of the contractor, possible compensation and the right to use certain benefits.

The contract is considered valid when the signature of the superior management is signed. The conclusion and termination of the contract is controlled and regulated by federal law. Under certain circumstances, the contract can be terminated early. After the expiration of the term, the contract can be extended. To get to the service under the contract, it is enough to contact the military registration and enlistment office at the place of registration, where a special commission is organized to consider the candidate, which checks the data about the candidate and his suitability.

Back to the table of contents

Basic requirements for candidates

Today, military service in Russia is considered very prestigious. For this reason, many go to serve in various troops in different professions. First of all, candidates who decide to join the army must comply with all established standards. Failure to comply with these requirements may result in refusal to serve under a contract. The main criteria are good professional training, psychological and physical health.

In a managerial position, it is necessary to possess a high level of professionalism and the presence of a higher education. To determine the suitability of a candidate, an attestation commission is organized, which conducts a medical examination and measures for professional selection. On the basis of the results of this commission, the candidate can be accepted or refused; contractual services in this case are practically not to be seen.

Back to the table of contents

For what reasons can they refuse

The verification of candidates is carried out carefully and strictly, the results are always documented. Refusal may follow if the citizen:

• after passing a medical examination, does not meet certain requirements, in other words, has physical disabilities or a serious disruption in the functioning of the body;
• if the attestation commission assigned the candidate to the 4th category in the professional selection;
• lack of vacancies;
• inconsistency of the candidate under the Federal Law;
• if a conviction is passed against a candidate, he is under investigation, his conviction has not been removed or canceled.

In case of refusal, the candidate has every right to appeal the decision in court.

Back to the table of contents

How can you refuse

There are times when, for some reason, the candidate changed his mind and decided to refuse to serve under the contract.

In order to refuse, you must cancel the submission of the admission report.

If the report was nevertheless submitted, it is still possible to refuse in writing to conclude the contract. There are times when a refusal is necessary for good reasons. You can terminate the contract early, by agreement of the two parties.

Reasonable reasons are required for early termination of the contract. According to the legislation, there may be reasons for early termination of the contract:

• failure to fulfill the rights and obligations that are stipulated in the contract;
• job cuts;
• transfer to the police or other executive organizations;
• deterioration in health, the appearance of symptoms that interfere with the fulfillment of the obligations stipulated in the contract;
• family circumstances;
• the need to care for a close relative who is limited in self-care activities;
• caring for a minor child, provided that there is no second parent;
• obtaining a deputy mandate;
• guilty verdict.

On the facts of coercion or illegal actions in relation to a citizen who wants to refuse military service under a contract, you can file a complaint with the command of the military district or the military prosecutor's office. To quickly resolve the issue of refusal, you must contact a military lawyer.

In law enforcement practice, the right to refusal to execute a contract began to be used since 2015. The specifics of its implementation are enshrined in Article 450.1 of the Civil Code. Let's consider the provisions of the norm in more detail.

General information

As Article 450.1 indicates, in order to exercise the right to refusal to execute a contract one party must notify the other of its intention. Upon receipt of the appropriate notification, the agreement will be considered terminated, unless another rule is fixed by the rules. Meanwhile, if the party to the transaction, having the right to, confirms the validity of the agreement, then subsequently he will not be able to use his opportunity for the same circumstances.

Foundations

In article 450.1 of the Civil Code there is a reference to the 310th norm of the Code. It establishes the cases when it is allowed. At the same time, the corresponding intention should be determined by other provisions of the legislation. It seems that this refers to the rules allowing to exercise the right to in case of violation by the counterparty of the terms of the transaction. Similar formulations, for example, are found in Articles 723, 405, 328, etc. Cancellation of the service agreement allowed in the absence of a special permit from the entity providing them, if its activities are subject to mandatory licensing.

Design features

How can you fix cancellation of the contract? Sample the main agreement between the parties may contain such a condition, among other material clauses. In addition, the parties to the transaction have the right to draw up a separate document. In both cases, the procedure must be spelled out according to which the agreement is terminated. For example, if received from a party, it will be canceled from the next day. At the same time, the legislation allows for a postponement of the termination of the agreement. In some cases, the participants in the relationship use potestative (undefined) conditions as a basis for withdrawing from the contract. The corresponding possibility is enshrined in Articles 327.1 and 157 of the Civil Code. The parties can set automatic in the event of the occurrence of the circumstances specified by them.

Legal nature

Cancellation of the service contract The Plenum of the Supreme Council qualified as a deal with a single participant. Accordingly, the rules governing the challenge of agreements and the recognition of their invalidity are applied to it. Unilateral withdrawal from the contract may become void if the conditions allowing it have not been implemented (in part or in full).

Effects

Refusal from the contract entails, as it was said above, its termination. However, the legislation also allows for changes in the content of the agreement. This is the case if the party withdraws from part of the contract. Clause 3 of Article 450.1 of the Civil Code provides for the possibility of one of the participants in the transaction to demand compensation for losses upon termination of the agreement. In particular, this is allowed if the other party did not have the necessary permits to carry out its activities. In this order, for example, can be implemented cancellation of an insurance contract... This activity is subject to licensing. If the organization provides services without a document, the client has the right to withdraw from the contract. Moreover, a person may not enter into a deal with such a company at all. Legislation establishes the principle of freedom of execution of agreements. If the organization does not have the necessary documents to conduct business, the client can express. In paragraph 4 of Article 450.1 of the Civil Code, the legislator draws attention to the obligation of persons to comply with the principle of good faith. This requirement also applies to unilateral waiver. In case of non-observance of the instructions, it may be recognized as voidable or null and void.

Obstacles to the realization of the right

In clause 5 of Article 450.1 of the Code, it is established that if the second party has accepted the performance from the first, then subsequently it will not be able to withdraw from the contract on grounds that are related to the extinguished obligations. This is due to the fact that by such actions the participant confirms the validity of the agreement. According to experts, the norm, enshrined in paragraph 5, is aimed at keeping the parties from inconsistent and contradictory behavior. It is worth saying that confirmation by the party having the right to refuse, the desire to keep the contract in force, can be expressed not only in action, but also in inaction. An example of the former is the acceptance of improper fulfillment of the terms of a transaction. Repeated such performance cannot be used as a condition for canceling the contract. An example of inaction is a situation when a creditor, waiting for the repayment of an obligation, missed the deadline for exercising his right.

Procedure adjustments

It is worth noting that today in the field of entrepreneurship, the changed rules for refusal of the customer from the agreement on the provision of paid services are applied. The legislator tried to adjust the procedure towards maintaining a balance of interests of both parties to the transaction. An exception has appeared from the general rules governing the customer's ability to unilaterally express an unmotivated refusal from the agreement with compensation in favor of the contractor only for the costs actually incurred by him. At present, it may be conditioned by the need to comply with the established period and the payment of compensation to the entity performing the work. This norm, meanwhile, does not exclude the possibility of the parties agreeing on a different procedure for the onset of consequences. For example, it can be full compensation for losses on the part of both the customer and the contractor. Also, participants can provide for rules stipulated by the need for one party to pay a certain amount in favor of the other. Such a condition, as a rule, is applied in contracts, the performance of which is associated with the conduct of business activities by both counterparties.

Negative practice

It should be said that earlier the procedures for resolving disputes related to unilateral refusal were based on the provisions of Article 782 of the Civil Code. As a result, a fairly stable practice of applying this peremptory norm has been formed. 782 article does not allow any discretion of the parties in the framework of the contract for the provision of services of a reimbursable nature. The legislation does not provide for any formalities or additional conditions for one of the participants to exit the transaction on their own initiative. Accordingly, in the agreement, the parties did not have the right to establish the possibility of its termination at the end of the agreed period from the date of sending the notification. The Presidium of the SAC in one of its Resolutions indicated that, within the meaning of Article 782, cancellation of the service agreement is allowed at any time. This may be the moment before the start of its provision or in the process of implementation of the agreed activities by the counterparty. Due to the fact that the possibility to declare a refusal is established imperatively in the 782 norm, it cannot be limited by agreement of the parties. If the participants have set any conditions, then they will be invalidated. The grounds for this will be the provisions of Articles 168 and 422 of the Civil Code.

Consideration of conditions for compensation for termination of agreements

Today the interpretation of Article 782 has been slightly changed. Due to this, a balance of interests of both parties to the transaction was achieved. In particular, the parties are given the opportunity to negotiate in advance all the likely consequences of terminating the contract. Participants, for example, can agree on compensation in a flat amount or as a percentage, which is calculated on the cost of services for the period from the moment of receipt of the notification until the date of the termination of the agreement, which was originally established. A similar approach can be applied in the case of surety. Within the framework of such an agreement, the attorney in the interests and on behalf of the principal carries out legal actions. The latter has the right to withdraw from this transaction on his own initiative on the basis of the provisions of the Code of Civil Code 978.

Refusal to conclude a contract

The legislation provides for the possibility of the subject not to agree to the terms of the transaction and, accordingly, not to execute it. This right reflects the principle of freedom of contractual relationship. The subject can realize it both at the stage of negotiations and directly during the execution of the transaction.

Restrictions

The legislation has established several cases when it is impossible to refuse to conclude an agreement. These include agreements:

In most cases, it is enough for a person who does not want to complete a deal not to respond to an offer. But sometimes, according to the rules, the subject must document his refusal. Such cases include:

1. The presence of the person obliged to conclude the contract, grounds for refusal to the consumer.
2. Registration of delivery within the framework of a municipal / state contract.

Letter

As mentioned above, in some cases, the subject must document his refusal. The legislation does not regulate the clear form of such a letter. Accordingly, the general rules apply to this document. In particular, a letter drawn up on the company's internal letterhead must be certified by the signature of the director or an employee authorized by him. The document must contain:

1. Name of the subject to whom it is addressed, or full name (if it is a citizen), location / residence address, contact information.
2. Outgoing number of the act, date of registration in the journal.
3. Title of the document.

1. Initial terms of the transaction, offers from the addressee.
2. Waiver wording. In this case, its reasons should be clearly indicated.

Municipal / state order

It was said above that it is impossible to refuse to conclude a contract according to general rules. However, this prohibition does not apply to some cases. Federal Law No. 44 allows refusal to register a deal with the winner of the auction. This opportunity can be used by the customer if:

1. The procurement participant does not meet the regulatory requirements.
2. There are circumstances set out in Article 31 of the Federal Law No. 44 (paragraph 10).
3. Inaccurate information was provided regarding the winner's compliance with the established requirements.

In all other cases, the customer's refusal is recognized as illegal.

Protocol

The consequences of the customer's refusal are regulated by clause 11 31 of article FZ No. 44. In accordance with the provisions, the subject, no later than one day after the discovery of the above circumstances, must place the protocol on the Internet. This document must be sent to the second party within two days. The protocol must contain information:

1. About the place and time of registration.
2. Details of the bidder, with whom the customer refused to conclude a contract.
3. Motivated reasons for the decision.

If a procurement participant expresses a desire not to execute a contract, then unfavorable consequences may occur for him. In particular, he will not receive the security deposit that he made during the application process. An exception to this rule is competitive bidding, which is conducted in two stages. After the first round, participants have the right to refuse the next one without loss.

Public agreement

The essence of such an agreement is that it must be concluded with each person who applies. At the same time, the obliged entity may express a desire not to complete the transaction on grounds that do not allow the implementation of the specified work. The reasons may be the lack of technical ability to provide rail transportation, connect to the water supply. Meanwhile, it should be said that the indicated basis is far from an excuse. The fact is that sectoral legislation establishes clear criteria for establishing the absence of technical feasibility. In addition, refusal is allowed by special rules that do not regulate civil legal relations. They focus on customer abuse.

Hello Svetlana!

It is impossible to refuse to conclude a contract in such conditions; you can get into the register of unscrupulous suppliers.

If it's all about timing, it might be worth trying to go to the Arbitration Court with a claim to compel the customer to conclude an agreement on your terms. In the claim, you will have to substantiate that it is impossible to repair the heating in the current weather conditions. I think the court will be on your side. If there is no interest in concluding a contract, then do as your colleagues suggested. The most convenient option is to conclude an agreement and terminate it by agreement of the parties, if the customer does not mind.

According to article 446 of the Civil Code of the Russian Federation In cases of transfer of disagreements arising at the conclusion of an agreement for consideration by a court on the basis of Article 445 of this Code or by agreement of the parties, the terms of the agreement on which the parties had disagreements are determined in accordance with a court decision.

According to Article 445 of the Civil Code of the Russian Federation 1. In cases where, in accordance with this Code or other laws, the conclusion of an agreement is mandatory for the party to which the offer is sent (draft agreement), this party must send the other party a notice of acceptance, or of refusal to accept, or on the acceptance of the offer on other terms (protocol of disagreements to the draft agreement) within thirty days from the date of receipt of the offer. agreement), has the right to transfer the disagreements that arose upon the conclusion of the agreement for consideration by the court within thirty days from the date of receipt of such notification or the expiration of the period for acceptance. 2. In cases where, in accordance with this Code or other laws, the conclusion of an agreement is mandatory for the party that sent the offer (draft agreement), and a protocol of disagreements to the draft agreement will be sent to it within thirty days, this party is obliged within thirty days from the date of receipt of the protocol of disagreements, notify the other party of the acceptance of the agreement in its revision or rejection of the protocol of disagreements. ... The rules on the terms provided for in paragraphs 1 and 2 of this article shall apply unless other terms are established by law, other legal acts or are not agreed by the parties. 4. If a party for whom, in accordance with this Code or other laws, the conclusion of a contract is obligatory, evades its conclusion, the other party has the right to apply to the court with a demand to compel the conclusion of an agreement. ...

If the supplier refuses to conclude a contract after summing up the results of the procurement procedure

The register of unscrupulous suppliers is referred to in Art. 5 of the Federal Law of 18.07.2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities" (hereinafter - 223-FZ, Law No. 223-FZ, the Procurement Law). On November 22, 2012, the Government of the Russian Federation adopted Resolution No. 1211 "On the introduction of a register of unscrupulous suppliers provided for by the Federal Law" On the procurement of goods, works, services by certain types of legal entities ".

The named regulatory legal act prescribes:

• rules for customers to send information about unscrupulous procurement participants and suppliers to the federal executive body authorized to maintain the register of unscrupulous suppliers;
• rules for maintaining the register of unscrupulous suppliers;
• a list of information that is included in the register of unscrupulous suppliers;
• requirements for technological, software, linguistic, legal and organizational means of maintaining a register of unscrupulous suppliers.

In accordance with the Procurement Law, a supplier can be included in the RNP on such grounds as:

termination of the contract with the counterparty by a court decision in connection with a significant violation of the terms of the concluded contract.

When sending information about unscrupulous suppliers for inclusion in the register, when contracts with them were terminated by the court, the customer must take into account some peculiarities. For example:

If the customer refused to conclude and sign the contract for reasons such as, for example, in connection with the financial situation of the enterprise, then information about the suppliers is not sent for their inclusion in the register of unscrupulous suppliers.

Before going to court, the customer must apply the pre-trial procedure for resolving the current situation, dispute (Article 452 of the Civil Code of the Russian Federation).

evasion of the person who is the winner in the procurement procedure from the conclusion of the contract.

Carrying out procurement activities in accordance with 223-FZ, the customer may face a situation when the winner of the procurement evades signing the contract and fulfilling all its conditions. Persons who in bad faith fulfill the requirements of the procurement documentation related to the conclusion and execution of the contract are subject to inclusion in the RNP (for example, after summing up the procurement results and determining the winner, the participant refuses to deliver the goods at the previously announced price specified by him in the application for participation, which is the winner's evasion purchases from the conclusion of the contract). This circumstance may significantly complicate the access of such suppliers to the market for goods, works and services in the next two years, since the customer has the right to establish in the procurement documentation the requirement for the absence of information about the procurement participants in the RNP (Article 3 of Law No. 223-FZ). In this case, the opportunity to participate in procurement procedures and, accordingly, to conclude contracts with such a supplier is significantly reduced. Thus, the financial and economic position of the organization is undermined, the profit from the sale of goods (works or services) on the market decreases.

The inclusion of unscrupulous suppliers who have avoided concluding a contract in the RNP according to 223-FZ is possible in cases where the signing of the contract after summing up is mandatory in accordance with the current procurement regulation and the customer's procurement documentation. In this regard, before contacting the antimonopoly authority, the customer must carefully study its own position and procurement documentation, in accordance with which the specific procurement procedure was carried out.

Federal Antimonopoly Service maintains the RNP in accordance with clause 5.3.4 of the Regulation on the Federal Antimonopoly Service, approved by the Decree of the Government of the Russian Federation of June 30, 2004 No. 331. The register is maintained in electronic form using an information system that includes software tools, in accordance with the requirements for technological, software, linguistic, legal and organizational means of maintaining the register of unscrupulous suppliers. The antimonopoly authority places information in the register of unscrupulous suppliers in accordance with the current legislation, taking into account the requirements for the protection of state secrets. All information that is sent by the customer to the supervisory authority for entry in the register about the unscrupulous supplier is verified. In the absence of the necessary information, the FAS sends a notification of the need to send the required data to the antimonopoly authority within 3 working days from the day when the customer received a notification of the provision of information from the authorized body. After checking the information, the data about the supplier are included in the RNP by the antimonopoly body within 3 working days, forming a register entry (it must be signed by a representative of the authorized body using an EDS or other analogue of a handwritten signature in order to protect the information included in the register). Information about the supplier is excluded from the RNP after 2 years from the date the information is included in the register. Also, the register entry on the unscrupulous supplier can be removed from the RNP by the authorized body in the case when the court decision to terminate the contract, which became the basis for adding information about the supplier to the RNP, was canceled in the manner prescribed by law.

Information contained in the registry

• Registry record number and date of inclusion of information in the register
• The authorized body that carried out the inclusion of information in the register
• Information about the unscrupulous supplier (performer, contractor) and its location (place of residence):
• Information about the purchases carried out:
• Information about the contract:

Currently, the customer has the opportunity to make a note that the supplier is not included in the register of unscrupulous suppliers in the section "Requirements for procurement participants" when forming a notice on the official website about the procurement procedure. In the future, when drawing up procurement protocols, the procurement participants will be checked in the register of unscrupulous suppliers.

If, after the end of the procurement procedure, the winner evades concluding a contract (or a procurement participant with whom, according to the procurement documentation, an agreement is concluded if the procurement winner avoids concluding a contract, provided that the documentation stipulates the obligation of such a participant to conclude an agreement), the customer must send an appeal to the Federal the antimonopoly service on the inclusion of the supplier in the register of unscrupulous suppliers (this is not a right, but an obligation of the customer). In the appeal, the customer should indicate the name and other data (address, TIN, KPP, etc.) of the person who refuses to conclude a contract, the method of the procurement procedure, the product (work or service), the purchase of which was carried out. The customer should not forget that for failure to submit or untimely submission of information about unscrupulous suppliers (performers, contractors), or the provision of deliberately false information about unscrupulous suppliers to FAS Russia, in accordance with the Code of Administrative Offenses of the Russian Federation, administrative liability is provided in the form of a fine.

Having received an appeal from the customer, the antimonopoly service accepts it for production and subsequently sends a notification to the customer and the supplier about the consideration of the appeal on the inclusion (or non-inclusion) of information about the supplier in the register of unscrupulous suppliers. In the notification, the antimonopoly authority asks the customer and the supplier to provide the necessary documents within the specified period for a more complete and comprehensive consideration of the appeal and making the right decision. Also, in the notification, FAS Russia sets the date and time (indicating the address) when the meeting on the issue of including (or not including) the winner of the procurement in the RNP will take place. When considering the appeal by the commission of the antimonopoly body, the parties must ensure the attendance of their representative with a duly executed power of attorney.

Example of a power of attorney

As a rule, the antitrust authority requests the following documents and information:

From the organizer of the purchase:

Notification and documentation of the procurement procedure, notifications of changes to the documentation, clarifications of the procurement documentation (if any);

All bids submitted by the procurement participants;

All protocols that were drawn up during the procurement procedure for goods (works, services);

Evidence of sending the draft agreement to the supplier (contractor, executor) (if the winner evades signing), as well as other information that will indicate the refusal to conclude the agreement.

Also, the supervisory authority may request:

Documents in accordance with which the procurement procedure was carried out (for example, a regulation on the procurement of goods, works, services, an order to approve a procurement regulation);

Regulatory document on the organization and conduct of this purchase (for example, an order of the director on the organization and conduct of a request for proposals for the supply of an anti-ice reagent);

Other documents and information.

At the supplier (contractor, executor):

Charter (Regulation), in the absence of such in the public domain;

Certificate of state registration of a legal entity;

Information about the date and time of receipt of the draft agreement;

Information about the sending by the supplier (performer, contractor) of the signed draft contract (indicating the date and time of sending), if such documents were not sent - an explanation in writing indicating the reason for evading the conclusion of the contract with the customer;

Other information related to evasion from the conclusion of the contract (if any).

To the Federal Antimonopoly Service no later than 30 calendar days from the date of the conclusion of the contract with the participant in the procurement procedure, with whom, according to the terms of the procurement documentation, the contract is concluded, if the winner avoided signing the contract, or from the day when the term for concluding the contract, prescribed in procurement documentation (if the customer in the procurement documentation does not provide for the option of concluding a contract with another procurement participant when the winner avoids signing the contract), the customer sends the necessary information in accordance with Art. 5 of Law No. 223-FZ, the Rules for maintaining the register of unscrupulous suppliers, approved by Resolution No. 1211 of 22.11.2012 "On maintaining the register of unscrupulous suppliers, provided for by the Federal Law" On the procurement of goods, works, services by certain types of legal entities. "

On the appointed date, the FAS Russia commission, with the participation of representatives from the customer and from the person who avoided signing the contract, examines the request of the organizer of the procurement procedure to include information about the supplier (performer, contractor) in the register of unscrupulous suppliers. The commission, having received the information and documents provided by the parties, clarifies the position of both the customer and the person who refused to conclude the contract (the provisions of the procurement documentation, protocols, the procedure for signing the contract by the parties, the terms for concluding the contract, etc. are studied).

The parties explain their arguments regarding the inclusion (non-inclusion) of the supplier (contractor, performer) in the RNP, answer the questions of the FAS commission. Also, the parties can ask each other questions about the untimely signing of the contract after summing up the results of the purchase. As a rule, the review process is not long, does not last for hours, so it is important to clearly and concisely formulate your position.

The customer, in accordance with the procurement regulations and procurement documentation, argues for the requirement to include the winner of the procurement in the register of unscrupulous suppliers. For example, according to the protocol for summing up the request for proposals, the customer, within 7 working days from the date of publication on the official website of the final protocol, sends the contract for signing by the supplier, who, in turn, must sign it within 10 business days and send one copy of the contract to the procurement organizer (who is the first to sign the contract - the customer or the supplier - does not matter, unless otherwise provided in the procurement documentation or the final protocol).

If these terms are violated by the winner, the customer must contact the antimonopoly authority, since in accordance with Art. 5 of the Procurement Law, the RNP includes information about procurement participants who evaded the conclusion of a contract, as well as suppliers (performers, contractors) with whom the contracts were terminated due to a significant violation of the contract by them. The customer can familiarize himself with the list of unscrupulous suppliers on the official website, such information is publicly available and is provided for review without charging a fee.

How to find a supplier in RNP?

The customer can easily find the necessary information, check the supplier, using the search parameters, using the functionality of the official website. To do this, in the "registers" tab, select the "register of unscrupulous suppliers" and then carry out a search after entering the required information about the person (TIN, name).

Also, the antimonopoly body ensures the creation and formation of a certificate on whether participants in the procurement procedure, suppliers (performers, contractors) are in the register of unscrupulous suppliers at the request of a visitor to the official website.

In order to avoid the inclusion of information in the RNP, the supplier (contractor, performer) must provide explanations and evidence for consideration of the customer's appeal, which could refute the fact of evading the conclusion of the contract for the needs of the customer: for example, if technical problems arose when signing the contract in electronic form (see. the decision of the Kurgan OFAS Russia in case No. 05-02 / 4-12 on refusal to be included in the Register of unscrupulous suppliers of ZAO "Glinki").

The FAS Commission, comparing the arguments and justifications of the parties, will decide to include the supplier in the RNP (for example, the decision of the Kirov OFAS Russia decision to include LLC BULAT in the register of unscrupulous suppliers, case No.RNP-43-02) or refuse to do so (for example , The decision of the Penza OFAS following the consideration of the application for the inclusion of OOO Kamenko-myaso in the register of unscrupulous suppliers, case No. 5-09 / RNP-58-02).

In any case, the decision of the supervisory authority can be appealed by the parties in court within three months from the date of its adoption.

After consideration of the appeal, the decision is sent to the parties, and is also posted on the Internet on the website of the antimonopoly authority of the region (this decision can also be found in the database of decisions of the FAS on its official website, specifying the necessary search parameters).

Thus, at present, such a method of protecting the interests of the customer as including information about unscrupulous suppliers in the RNP is quite effective, since access to orders for such persons will be closed for 2 years, which practically deprives suppliers of normal functioning and closes access to the sales market. The customer has the right to register in the procurement documentation as a condition for participation in the procurement, the absence of a supplier both in the register of unscrupulous suppliers, provided for by Federal Law No. 223, and in the register for public procurement.

Recently, the number of applications for inclusion in the register of unscrupulous suppliers has been increasing, since customers, understanding the responsibility provided for by the Code of Administrative Offenses of the Russian Federation for failure to submit to the supervisory authority information about suppliers who evade the conclusion of an agreement, in the form of a fine, are not ready to incur extra costs due to their own lack of initiative. ... Also, this practice of including information in the register about unscrupulous suppliers allows other customers in the future not to run into an unreliable partner and not create problems for themselves regarding the supply of goods, the performance of work or the provision of services. And suppliers, knowing about the possible two-year isolation of participation in procurement procedures, will take a more serious and responsible approach to the issue of signing and executing a contract. Once blacklisted, called RNP, suppliers risk losing trust with customers as a reliable business partner capable of meeting their needs in full and on time.

Date: 28.08.2018

In the practice of procurement for state (municipal) and corporate needs, situations may arise when the customer, for one reason or another, needs to abandon his plans to carry out a specific procurement after the completion of the procurement procedure and determination of the supplier (contractor, contractor). This situation refers to competitive procurement, it is irrelevant in relation to non-competitive procurement - the customer reserves the natural right to “change his mind” until the moment of signing a contract with a single supplier (contractor, performer).

In the legislation on the contract system, the cases, conditions and procedure for such refusal are spelled out quite clearly - for example, it is established that the customer's refusal to conclude a contract with the winner of the competitive procurement is carried out at any time before the conclusion of the contract if the customer or the procurement commission discovers that the procurement participant does not meet the requirements established in the procurement documentation, or has provided false information in relation to its compliance with these requirements 1.

But in 223-FZ, which, as you know, in comparison with 44-FZ, is more of a framework nature (although over time the law becomes more and more detailed), there are no similar specific norms. Rather, there are no rules at all that would be somehow related to the refusal of customers to purchase. Thus, the definition of the “rules of the game” related to the refusal to conclude a contract is actually entirely left to the customers themselves - it is assumed (although nowhere is it formally required) that they will establish such rules in their procurement regulations. Therefore, for example, suppliers who want to know these rules or who want to understand whether the customer's refusal to purchase was legitimate, it is necessary to get acquainted with the content of these particular documents of specific customers. The customers themselves need to be very careful about setting out these rules in their procurement regulations in order to take into account all possible situations in their own interests.

For example, OAO NCO Rosneft 2 established the possibility for itself “to refuse to conclude an agreement based on the results of the procurement procedure without obligations to compensate for losses to the procurement participants, except for cases directly established by the current legislation of the Russian Federation for holding tenders”. Note that no such cases have yet been established in 223-FZ, and nothing is said about such cases in the federal legislation on the protection of competition 3.

But in civil law, such a case is spelled out, and we recall that customers under 223-FZ are obliged to be guided by this legislation 4. In particular, it contains the rule that “unless otherwise provided by law, the person who won the auction and the organizer of the auction sign on the day of the auction or competition a protocol on the results of the auction, which has the force of an agreement”, and “if, in accordance with by law, the conclusion of an agreement is possible only by holding an auction; if the organizer of the auction avoids signing the protocol, the winner of the auction has the right to apply to the court with a demand to compel the conclusion of an agreement, as well as to compensate for losses caused by the evasion of its conclusion ”5.

In the law (that is, in 223-FZ) nothing “different” is established, therefore, the requirement to sign a protocol having the force of an agreement on the day of the auction or competition should be applied. And in general, if the customer holds an auction, then, as they say, he will not get away from the conclusion of the contract. But what methods of purchasing are considered to be bidding?

In accordance with civil legislation, tenders (including electronic ones) are held in the form of an auction, competition or in another form provided for by law 6. Until recently, the legislation regarding procurement under 223-FZ did not provide for other forms of bidding, so if it was not about a tender or an auction, then customers could freely refuse to conclude an agreement with the winner of the procurement (see the above example with OAO NKO Rosneft ). At the same time, the courts considered that the customer's refusal to conclude an agreement was unlawful only if it was about the results of the auction or at least about the use of procurement methods, the procedure for which met the signs of the auction 7, and also if the possibility of refusing to conclude an agreement was not provided in the procurement regulation8.

However, according to the latest amendments to 223-FZ, not only a tender and an auction, but also a request for quotations and a request for proposals 9 began to be considered as auctions. Moreover, now in 223-FZ a norm has been introduced according to which an agreement based on the results of any competitive procurement must be concluded no earlier than 10 and no later than 20 days from the date of posting in the EIS of the final protocol drawn up based on the results of a competitive procurement (in the case of the need for approval by the management body of the customer in accordance with the legislation of the Russian Federation of the conclusion of the contract or in the event of an appeal to the FAS of the actions (inaction) of the customer, the commission for the implementation of competitive procurement, the operator of the electronic site, the contract must be concluded no later than 5 days from the date of said approval or from the date the decision of the antimonopoly body based on the results of appealing against the actions (inaction) of the customer, the competitive procurement commission, the operator of the electronic platform) 10. At the same time, the provisions of the customers must be brought in line with these changes by 01.01.2019 11. Thus, after the specified period, the possibilities of customers to refuse to conclude an agreement with a supplier (contractor, performer), determined by the results of any competitive procurement, will be very limited - only competitive procurements that do not fall under the obligation to conclude a contract established by civil law 6 are tenders (for example, a request for quotations). Recall that, in accordance with the novations 223-FZ, competitive procurement has the following “competitive” features 12:

1. Purchase information is communicated by the customer in one of the following ways:
   • by placing a notice of competitive procurement in the EIS, available to an unlimited number of persons, with the attachment of competitive procurement documentation;
   • by sending invitations to take part in a closed competitive procurement (carried out in cases where information about the procurement constitutes a state secret, etc.);
2. Competition is ensured between the procurement participants for the right to conclude an agreement with the customer on the terms proposed by the participants.

At the same time, it is now established in 223-FZ itself that after the expiration of the period for filing applications and before the conclusion of the contract, the customer has the right to cancel the definition of the supplier (performer, contractor) only in the event of force majeure circumstances in accordance with civil law. 13

It is noteworthy that in the relatively new editions of the procurement provisions of some customers, you can find norms that allow them to refuse to conclude a contract in a variety of cases. For example, in the version of the standard (regulation) on the procurement of ROSATOM dated 06.23.2018, we see the rule that the customer is not entitled to refuse to conclude an agreement based on the results of a competitive procurement, except for cases stipulated by the standard and the legislation of the Russian Federation, but at the same time in The standard also states that the customer has the right to decide to refuse to conclude an agreement in accordance with the legislation of the Russian Federation in the following cases:

1. Changes in financial, investment, production and other programs that influenced the need for this purchase;
2. Changes in the need for products, including changes in product characteristics, if such changes are approved by the customer's manager;
3. In the event of force majeure circumstances, confirmed by the relevant document and affecting the expediency of the purchase;
4. The need to comply with the orders of the antimonopoly authority and / or the recommendations of the client's arbitration committee and / or other authorized supervisory authority;
5. Changes in the legislation of the Russian Federation, regulatory legal acts, the publication of acts of federal executive bodies affecting the possibility and / or expediency of the procurement.

The phrase “in accordance with the legislation of the Russian Federation” in this example can probably be interpreted as “if the purchase was not made by auction”, although this is not clearly indicated as in the case of OJSC “Rosneft”.

So it can be assumed that in practice, when modifying their procurement regulations, customers will in one way or another try to retain their right for various reasons to refuse to conclude an agreement with the winner of the competitive procurement, and this, in the light of the new legal context, will become the subject of disputes between them, the procurement participants and regulatory authorities.

We also point out that in practice, the customer's refusal to conclude a contract may mean his desire to thus change the results of the purchase. And here one should not confuse refusal to conclude a contract (that is, complete termination of the procurement procedure) with a revision of the procurement results (change of protocols, “re-election” of the winner, etc.). Such a revision of the results would contradict the legislation in terms of procurement principles, and most likely, the procurement regulation of the customer himself - thereby violating the requirement of federal legislation on the protection of competition, which prohibits violating the established procedure for determining the winner or winners of the auction, request for quotations, request for proposals 14. After such a refusal (if it is still permissible), the customer can, by making changes to the procurement plan, start the procedure for a new purchase (or several new purchases) from the very beginning, or may not carry it out at all.

In conclusion, I would like to note that all of the above applies, of course, only to those cases when the customer has nothing to reproach the winner of the purchase with. Often, the procurement regulations also provide for cases where the customer's refusal to conclude a contract may be due to the winner's "jambs". For example, in the procurement regulation of the Far Eastern Federal University, it is established that after determining the participant with whom the contract should be concluded, the customer, within the time period provided for the conclusion of the contract, has the right to refuse to conclude a contract with such a participant in the following cases: 1) establishment of the fact of liquidation procurement participants - legal entities or the adoption by an arbitration court of a decision on declaring a procurement participant - a legal entity, an individual entrepreneur - bankrupt and on the commencement of bankruptcy proceedings; 2) suspension of the activities of procurement participants in the manner prescribed by the Code of the Russian Federation on Administrative Offenses; 3) provision by procurement participants of knowingly false information contained in the documents submitted by them. Also, an obvious reason for such a refusal may be the case when the winner of the procurement did not provide the required security for the performance of the contract (if it is provided for under the terms of the procurement) or provided it in violation of the established requirements. This approach, of course, is quite reasonable and can hardly be vulnerable from a legal point of view - recall that the same approach is applied in the legislation on the contract system (see above).

1 Part 9 Art. 31 of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" dated 05.04.2013 No. 44-FZ.

2 Hereinafter, information on the content of the procurement provisions of specific customers is taken from the procurement provisions posted in the EIS (www.zakupki.gov.ru).

3 Federal Law No. 135-FZ of July 26, 2006 “On Protection of Competition”.

4 Part 1 Art. 2 of the Federal Law of 18.07.2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities."

5 Part 6 Art. 448 of the Civil Code of the Russian Federation.

6 Part 4 Art. 447 of the Civil Code of the Russian Federation.

7 See, for example, Resolution of the Arbitration Court of the Moscow District of 07.07.2016 No. F05-8512 / 2016 in case No. A40-163328 / 15.

8 See, for example, Resolution of the Arbitration Court of the Ural District dated 12.12.2014 No. F09-8172 / 14 in case No. A34-1410 / 2014; Resolution of the Eleventh Arbitration Court of Appeal dated September 22, 2016 No. 11AP-11218/2016 in case No. A7

9 p. 1 h. 3.1 art. 3 of the Federal Law of 18.07.2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities."

10 Part 15 Art. 3.2 of the Federal Law of 18.07.2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities."

11 Part 3 Art. 4 of the Federal Law of December 31, 2017 No. 505-FZ "On Amendments to Certain Legislative Acts of the Russian Federation".

12 Part 3 Art. 3 of the Federal Law of 18.07.2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities."

13 See part 3 of Art. 401 of the Civil Code of the Russian Federation and clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 24, 2016 No. 7 "On the application by the courts of certain provisions of the Civil Code of the Russian Federation on liability for violation of obligations."