Extension of deadlines for completing work under Federal Law 44. Even if both parties to a government contract agree to extend the deadline for completing the work, as a general rule this will not be possible

Our company entered into a government contract under which it undertook to carry out construction and installation work. According to the terms of the contract, the period for completing the work is counted from the moment of its conclusion. But we can actually start work only after receiving project documentation. And already at the first stage, a problem arose - the customer greatly delayed the documentation. Because of this, we are unable to complete the work on time - the contract must be extended. Can we extend the term of the government contract taking into account the current situation and what do we need to do for this?

The ability to extend the term of a government contract partly depends on whether this is provided for in the government contract itself. The fact is that the relationship between the contractor and the state customer is regulated not only by the general norms of the Civil Code of the Russian Federation, but also by the special Federal Law of 04/05/2013 No. 44-FZ “On contract system in the field of procurement of goods, works, services to provide government and municipal needs"(hereinafter referred to as Law No. 44-FZ).

Article 708 of the Civil Code of the Russian Federation states that the work contract specifies the initial and final deadlines for completing the work. By agreement between the parties, the contract may also stipulate deadlines for completing individual stages of work (interim deadlines). From this norm it follows that the deadline for completing the work is essential condition Contracts of any kind, including government contracts. In part 2 art. 34 of Law No. 44-FZ establishes that when concluding and executing a contract, changing its terms is not allowed, except in cases provided for by Art. 34, as well as Art. 95 of this law. Article 34 does not contain exceptions regarding deadlines, but Art. 95 of Law No. 44-FZ is entirely devoted to the procedure for changing and terminating a government contract.

By general rule according to Art. 95 of Law No. 44-FZ, changes in the essential terms of the contract during its execution are not allowed. However, there are exceptions: changes can be made if such a possibility is provided for in the procurement documentation and the contract itself when the contract price is reduced or when the quantity of goods, volumes of work or services provided for in the contract is increased. There are also exceptions for particularly large contracts (if the amount of a contract concluded for three years for federal needs and one year for municipal needs exceeds 10 billion, 1 billion and 500 million rubles for federal needs, the needs of the subject and municipal needs, respectively), when their execution is impossible without changing the conditions (however, in this case the decision to make changes is made by the relevant body executive power), for cases when changes are made to regulated prices(tariffs) for goods, works, services, as well as in case of a decrease in those previously communicated to the state or municipal customer as the recipient budget funds limits on budgetary obligations and if we are talking about a contract with a foreign organization for the treatment of a citizen of the Russian Federation outside its borders.

In addition, for contracts whose execution period ends in 2016, it is also possible to change the execution date by agreement of the parties. But the contract must meet three conditions at once: its execution period must be over six months, its execution due to circumstances beyond the control of the parties is impossible without changing the conditions, and its subject must be the supply of goods, performance of work, provision of services included in the lists approved relevant government agencies and institutions, or construction, reconstruction, technical re-equipment of facilities capital construction, including the acquisition of equipment included in the estimate for construction, reconstruction, technical re-equipment, and (or) carrying out work to preserve cultural heritage sites (historical and cultural monuments) of peoples Russian Federation(Clause 3 of the Rules for changing, by agreement of the parties, the contract execution period, and (or) the contract price, and (or) the price of a unit of goods, work, services, and (or) the quantity of goods, volume of work, services provided for in contracts, the execution period of which ends in 2016, approved by Decree of the Government of the Russian Federation dated March 14, 2016 No. 191).

Simply put, even if both the customer and the contractor theoretically agree to change the contract term, in most cases they do not have the opportunity to agree on this - the law does not provide for this. But what can a contractor expect in a situation where he obviously fails to complete the work on time due to the fault of the customer?

It should be noted first of all that a government contract, which cannot be extended, upon expiration deadline will simply cease to operate (see, for example, the ruling of the AC Ural district dated December 29, 2015 No. F09-10320/15 in case No. A76-28978/2014).

Accordingly, the government customer may try to collect a penalty for delay (if the contractor did not have time to complete the work), and the contractor may demand that the customer pay for the work that he managed to complete (if he nevertheless started to complete it). What should a contractor prepare for if the dispute goes to court?

In accordance with Part 9 of Art. 34 of Law No. 44-FZ, a party is exempt from paying a penalty (fine, penalty) if it proves that non-fulfillment or improper execution obligations under the contract occurred due to force majeure or the fault of the other party.

For example, in one case (ruling of the Ninth Arbitration court of appeal dated 02.12.2015 No. 09AP-50381/2015-GK in case No. A40-81763/2015) the parties entered into a government contract for equipping parking lots. The contractor did not complete the work on time, and the customer went to court with a demand to immediately complete the work, as well as to pay him a penalty for violating the deadlines. During the consideration of the dispute in court, it turned out that the customer did not create necessary conditions to carry out the work: the design documentation issued to the contractor contained incorrect data, while the contractor was supposed to carry out work on equipping parking lots, these parking lots were used for parking road cleaning equipment, and in addition, the contractor could not carry out the work on time ( until December 31, 2014), because weather conditions did not allow the work to be completed without disrupting the technology. Taking these circumstances into account, the courts of three instances sided with the contractor and rejected the government customer’s claim.

Article 718 of the Civil Code of the Russian Federation stipulates that the customer is obliged, in cases, to the extent and in the manner provided for by the contract, to provide assistance to the contractor in performing the work. If the customer fails to fulfill this obligation, the contractor has the right to demand compensation for losses caused, including additional costs caused by downtime, or rescheduling the work, or increasing the price of the work specified in the contract. In cases where the performance of work under a contract has become impossible due to the actions or omissions of the customer, the contractor retains the right to pay him the price specified in the contract, taking into account the completed part of the work. According to Art. 719 of the Civil Code of the Russian Federation, the contractor has the right not to start work, but to suspend the work begun in cases where the customer violates his obligations under the contract, in particular failure to provide material, equipment, technical documentation or the thing subject to processing (processing), prevents its execution by the contractor.

Accordingly, if the contractor understands that, as a result of the customer’s delay, he will not be able to complete all the work on time, he has a choice: complete at least part of the work, and then try to collect payment for it, or not start doing it at all. But no matter which option the contractor chooses, he must be prepared to provide evidence that the delay was the fault of the customer - this will allow him to at least avoid penalties for delay.

If, after signing the contract, one of the parties does not agree with the clauses of the additional agreement, then termination cannot be done so easily. This procedure takes place through the court, and the time frame can take a long time. On the extension of the deadline The deadlines for completing tasks must be specified in the main agreement, and this point is one of the main points between the parties. Very often unforeseen situations occur when it is not possible to complete the work within the described time frame. In such force majeure circumstances, the contractor has every reason to ask the customer to draw up additional agreement, which will indicate the fact of extension of the period. When compiling such an additional agreement you need to know about some features:

You must adhere to the rules for drawing up such an agreement.
The deadlines that are re-indicated must be realistic and met on time.

Additional agreement on postponing work deadlines

A construction contract has been signed. The contract provided for the acceptance of completed work once every six months. Do the parties to the state contract have the right to perform construction work conclude an additional agreement to increase the stages of work under the contract, for example, instead of the six-month stages of work performed initially provided for by the terms of the procurement documentation, introduce monthly stages? Having considered the issue, we came to the following conclusion: In the absence of grounds, provided by law, the parties to the contract do not have the right to change the conditions regarding the stages of execution of such a contract. At the same time, in our opinion, the parties to the contract have the right to agree on a more frequent acceptance of work, subject to agreement that such acceptance will not constitute acceptance of stages of work and will not entail any other consequences, except for the possible identification of deficiencies in the work performed.

Agreement on extension of terms under contract 2

If for some reason the performer refuses to perform additional work, then it will be simply impossible to conclude an agreement. Increasing the volume of work Already after the formation of a contract type contract, it turns out that it is necessary to perform a slightly larger volume of work than expected from the very beginning.

Important

In this case, it is also possible to draw up an additional agreement. At the same time, all possible nuances that arise when drawing up a document of this type, completely similar to the difficulties that arise when forming an additional agreement for additional work.

The issue of this type is covered in as much detail as possible directly in Article No. 60.2 of the Labor Code of the Russian Federation, as amended by Law No. 197-FZ of December 30, 2001. On changing parties Often, when implementing the task specified in the contract, various kinds of difficulties arise that do not allow the contractor to complete the work.

6. coordination of additional work

Presidium of the Supreme Arbitration Court of the Russian Federation dated January 24, 2000 N 51, specifically according to the stages of work under a construction contract. From these explanations it follows that acceptance of the results individual works, that is, not the results of all work under the contract as a whole, can be considered as acceptance of stages, giving the contractor the right to demand payment accepted works, only if such stages are provided for in the contract.

In this regard, we can note the position of the Ministry of Economic Development of Russia, presented in the answer to questions 24-25 of the appendix to the letter dated September 30, 2014 N D28I-1889: the stages of delivery of goods, performance of work, provision of services are determined only if they are expressly provided for in the contract .From the above, in our opinion, it follows that identifying individual stages of contract execution is possible only if the terms of this contract directly determine such stages. According to Part 2 of Art.

Bank of expert opinions

Law N 44-FZ, we believe that the conditions regarding the deadlines for acceptance of individual stages of work, as well as all work in general, and the terms of payment for completed stages and work as a whole are essential, as specified in the law. Accordingly, we believe that the deadline for completing individual stages work under the contract, as well as the deadline for completing work under the contract as a whole, as well as the deadlines for payment for work performed can only be changed in established by law cases. The possibility of changing the deadlines for the execution of the contract, to which, within the meaning of paragraph.
2 tbsp. 763 of the Civil Code of the Russian Federation also applies to the deadlines for performing work by the contractor; Law No. 44-FZ provides only in the event of a decrease in the limits of budget obligations previously communicated to the state or municipal customer as the recipient of budget funds (clause 6, part 1, art.

Additional agreement to the contract: sample

Attention

A contract today is used to document payment for the amount of work performed, as well as to set goals for the contractor. But it happens that for various reasons this document does not fully reflect all the important points directly related to the implementation of the task.

It is in this case that an additional agreement is drawn up. It is a special document that can significantly expand the terms of the contract.

What you need to know
Features of drawing up an additional agreement
Example of an additional agreement under a contract

To draw up an additional agreement, certain important conditions must be met.

What does an additional agreement to a contract look like in 2017?

Additional agreement on the extension of terms under contract No. ... dated ..., subcontracted finishing works in ... at the address ... Moscow " " 201_ Open Joint-Stock Company" ", hereinafter referred to as the "General Contractor", represented by General Director, acting on the basis of the Charter, on the one hand, and the Open Joint Stock Company " ", hereinafter referred to as the "Subcontractor", represented by the General Director, acting on the basis of the Charter on the other hand, and together hereinafter referred to as the Parties, have entered into this additional agreement on the introduction amendments and additions to contract No. ... dated ... city, subcontract for finishing work in ... at the address ... The parties agreed, in accordance with clause.
3.3. subcontract agreement No. ... dated ..., postpone the completion date specified in clause 3.1. of the above agreement, from ... to ... 201_. Further in the text without changes.

Sample additional agreement to a contract

Info

Thus, according to paragraph 6 of part 1 of Article 95 of Law No. 44-FZ, a change in the contract execution period is possible in the cases provided for in paragraph 6 of Article 161 Budget Code of the Russian Federation (hereinafter referred to as the BC RF), with a decrease in the limits of budget obligations previously communicated to the state or municipal customer as a recipient of budget funds.
Indirectly, this point of view is confirmed by the explanations given in the letter of the Ministry of Economic Development of Russia dated October 13, 2016 N D28i-2762, and the resolution of the Arbitration Court of the Ural District dated February 27, 2017 N F09-12384/16. Unfortunately, we were unable to find direct evidence of this position.
We recommend that you familiarize yourself with the following materials: - Encyclopedia of solutions. Acceptance of stages of contract execution under Law N 44-FZ; - Encyclopedia of solutions. Report on the execution of the contract, a separate stage of the contract under Law N 44-FZ; - Encyclopedia of decisions. Execution of the contract under Law No. 44-FZ. Acceptance of goods, work results, services.
Answer prepared by: Service Expert Legal consulting GARANTChashina Tatyana Response quality control: Reviewer of the Legal Consulting Service GARANTSerkov Arkady May 26, 2017

Initial concepts When drawing up an additional agreement, you should be aware of terms such as:

The side of the contractor and the customer.
Subject of the agreement.
Risks.

Contractor This is the company that accepts the order to perform the work. The customer's side This can be either a legal entity or an individual. person is the one who hires the contractor to perform the tasks. Subject of the agreement This is the execution of the assigned tasks, the conditions for their execution, as well as payment for the work done. This point is given special attention when forming an agreement. Risks. The responsibility of the contractor under various circumstances is stated here. Additional.

agreement Formed when the basic rules that are specified in the contractor’s agreement are changed.

ARBITRATION COURT OF KIROV REGION

610017, Kirov, st. K. Liebknecht, 102

http://kirov.arbitr.ru

In the name of the Russian Federation

SOLUTION

Case No. A28-11101/2015
Kirov city
November 20, 2015
The operative part of the decision was announced on November 17, 2015.

Arbitration court Kirov region composed of judge Zveder E.R.

when keeping the minutes of the court session by the secretary of the court session Orlova M.A.

reviewed in court hearing statement of claim

open joint-stock company "Kirovo-Chepetsk Construction Department" (TIN 4347030908, OGRN 1034316501647, 610014, Kirov, Proizvodstvennaya St., 21)

to the Kirov State Treasury Institution “Capital Construction Management” (TIN 4345221544, OGRN 1084345003027, 610020, Kirov, Preobrazhenskaya St., 71)

on changing the terms of the government contract,

with the participation of representatives at the court hearing:

from the plaintiff – Yu.S. Shastina, by power of attorney dated September 28, 2015,

Khlybova D.M., by power of attorney dated 10/06/2015,

from the defendant - Solodyannikov S.A., by power of attorney dated 04/28/2015,

installed:

Open Joint Stock Company "Kirovo-Chepetsk Construction Department" (hereinafter referred to as the Company, the plaintiff) filed a claim with the Arbitration Court (specified in accordance with the article of the Arbitration Court procedural code Russian Federation) to the Kirov State Treasury Institution “Capital Construction Administration” (hereinafter referred to as the Institution, the defendant) to change the terms of the state contract in terms of extending the deadline for work until November 13, 2015.

The claims are based on the provisions of articles of the Civil Code of the Russian Federation, articles 34, 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter - the federal law No. 44-FZ) and motivated by the objective impossibility of fulfilling the state contract within the time period agreed upon by the parties due to the defendant’s untimely provision of design documentation for the implementation of work on the installation of a control tank treatment facilities storm drains, without which it is not possible to put the facility into operation.

The defendant submitted a response to the statement of claim, in which he objects to the satisfaction claims. The defendant believes that the circumstances indicated by the plaintiff are not significant; untimely issuance of project documentation was taken into account when concluding an additional agreement to government contract; the actual replacement of one type of work with another should not affect the increase in the construction period of the facility.

At the court hearing, the parties maintained their positions set out in statement of claim and response to the statement of claim.

Judicial practice on:

For construction contract

Arbitrage practice on the application of the norm of Art. 740 Civil Code of the Russian Federation

Extension of the validity of contracts concluded under the legislation on the contract system is one of the most popular topics for discussion and discussion. Indeed, in the process of implementing their procurement activities, customers sometimes need to extend the concluded contract. The reason for this need may arise for a variety of reasons. However, contract legislation has strict provisions regarding penalties for untimely fulfillment of contract terms. And from this point of view, the prolongation can be regarded as a deliberate attempt unscrupulous supplier avoid this responsibility. We will try to understand this issue and give a specific answer to the question of whether it is possible to extend the validity period of an agreement concluded within the framework of the contract system.

Additional agreement on extending the period of work under the contract

Extension of the term of a contract from the point of view of general legislation Extension of the term or, as is more often said, prolongation of a contract is a fairly common phenomenon in the process of implementation by the parties of their contractual relations. Despite the regular use of this procedure, it should be noted that Civil Code The Russian Federation does not contain the concept of prolongation. Instead, it provides clear start and end dates for the execution of contracts for the supply of goods, performance of work or provision of services.
There are two options for extending the contract:

Conclusion of an additional agreement by the parties.
Availability of extension option in the text of the contract.

In both cases, the most important and prerequisite is an indication of the period for which the contract will be extended.

Extension of deadlines for performing work under the contract

O.], acting on the basis of [enter as necessary], hereinafter referred to as “Customer”, on the one hand, and [name of organization, enterprise, institution], represented by [manager position, full name], acting on the basis [enter as necessary], hereinafter referred to as the “Contractor”, together referred to as the “Parties”, have entered into this additional agreement as follows: 1. Due to the fact that [indicate the reasons that led to the extension of the work period], the Parties to the contract N [meaning ] dated [date, month, year] agreed to extend the deadline for completing the work until [date, month, year].
2. All other provisions of the contract remain unchanged and are binding. 3. This agreement is valid from the moment of signing and is an integral part of the contract N [value] from [day, month, year]. 4.

Rules, as well as construction, reconstruction, technical re-equipment of capital construction projects, including the acquisition of equipment included in the estimate of construction, reconstruction, technical re-equipment, and (or) carrying out work to preserve cultural heritage sites (historical and cultural monuments) of the peoples of the Russian Federation, with the exception of scientific and methodological guidance. At the same time, the possibility of changing the contract execution period is stipulated in the Rules by the need to comply with the following conditions: - the contract execution period is over 6 months (clause 3 of the Rules); - the contract cannot be executed without changing its terms for the reasons specified in Art. 451 of the Civil Code of the Russian Federation in connection with significant change circumstances (clause 5 of the Rules). In the situation under consideration, the contract period is less than 6 months.

Agreement on extension of terms under contract 2

Is it possible to extend the deadlines? municipal contract(contract duration - 35 days), concluded based on the results electronic auction(Federal Law dated 04/05/2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”) due to deteriorating weather conditions (the contractor cannot complete the work on time due to rainy weather and snowfall) ? Having considered the issue, we came to the following conclusion: In the above situation, it is impossible to increase the duration of the contract. A contract may be performed beyond its term. Rationale for the conclusion: According to Part 2 of Art.

Bank of expert opinions

Law No. 44-FZ) the contract is concluded on the terms stipulated by the notice of procurement or the invitation to participate in determining the supplier (contractor, performer), procurement documentation, application, final offer of the procurement participant with whom the contract is concluded. At the same time, changes in the essential terms of the contract during its execution are not allowed, with the exception of their changes by agreement of the parties in the cases specified in Article 95 of the Law. Thus, according to paragraph 6 of part 1 of Article 95 of Law No. 44-FZ, a change in the contract execution period is possible in the cases provided for in paragraph 6 of Article 161 of the Budget Code of the Russian Federation (hereinafter referred to as the Budget Code of the Russian Federation), with a decrease in previously communicated to the state or municipal customer as the recipient of budgetary funds. funds limits of budget obligations.

What letter should I write to extend deadlines?

Extending the validity period of a concluded contract is nothing more than defining and agreeing on new conditions, but such agreement is carried out with only one participant, while the purchase itself provided for competition. Based on the above, we can conclude the following:

prolongation of a contract concluded in accordance with Law No. 223-FZ is not prohibited and is possible;
the possibility and conditions for extending the contract must be specified by the customer in the procurement regulations;
It is recommended to use the opportunity to extend the terms of only those contracts that were concluded “directly” with a single supplier.

Conclusion In our opinion, contract extensions are best avoided.

Extension of the term due to delay in obligations

Federal Law of 04/05/2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as Law N 44-FZ) when concluding and executing a contract, changing its terms is not allowed, except except in cases provided for in this article and art. 95 of the same Law. Part 1 of Art. 95 of Law No. 44-FZ establishes that changes in the essential terms of a contract during its execution are not allowed, with the exception of their change by agreement of the parties in the cases listed therein. The concept of essential terms of a contract is not defined by Law No. 44-FZ. According to paragraph 1 of Art.

Extension of work completion time

Additional agreement on the extension of terms under contract No. ... dated ..., subcontracted finishing work in ... at the address ... Moscow " " 201_ Open Joint Stock Company " ", hereinafter referred to as the "General Contractor", represented by the acting General Director on the basis of the Charter, on the one hand, and the Open Joint Stock Company " ", hereinafter referred to as the "Subcontractor", represented by the General Director acting on the basis of the Charter on the other hand, and together hereinafter referred to as the Parties, have entered into this additional agreement on amendments and additions to contract No. ... dated ... city, subcontract for finishing work in ... at the address ... The parties agreed, in accordance with clause 3.3. subcontract agreement No. ... dated ..., postpone the completion date specified in clause 3.1. of the above agreement, from ... to ... 201_. Further in the text without changes.

Extension of the period for performing work under a contract

Extension of the contract term from the point of view of Law No. 44-FZ As mentioned above, the legislation on the contract system imposes strict requirements for the timely fulfillment by the parties of their obligations. In addition, the validity period of the concluded contract is an essential condition, which cannot be changed in accordance with Article 95 of Law No. 44-FZ. In this regard, there are a number of exceptions, such as, for example, a price reduction without changing the volume of goods supplied or work performed, a 10 percent decrease or increase in the volume of purchases, etc.

These exceptions do not provide for changing the duration of the contract; accordingly, the extension of a contract concluded under Law No. 44-FZ is impossible and will be considered a violation of the requirements of the legislation on the contract system.