Municipal contract under 44-FZ: procedure for conclusion, content requirements, standard sample

Letter of the Ministry of Finance of Russia dated November 16, 2017 No. 24-03-07/75960

In accordance with Part 1 of Article 34 of Law N 44-FZ, the contract is concluded on the terms stipulated by the notice of procurement or the invitation to take part in determining the supplier (contractor, performer), procurement documentation, application, final offer of the procurement participant with whom the contract is concluded , with the exception of cases in which, in accordance with the specified Federal Law, a notice of procurement or an invitation to participate in determining the supplier (contractor, performer), procurement documentation, application, or final offer are not provided.
In accordance with Part 1 of Article 94 of Law N 44-FZ, contract execution includes the following set of measures implemented after the conclusion of the contract and aimed at achieving procurement goals through interaction between the customer and the supplier (contractor, performer) in accordance with civil law and Law N 44-FZ, including:

1) acceptance of the delivered goods, the work performed (its results), the service provided, as well as individual stages of the supply of goods, performance of work, provision of services (hereinafter referred to as a separate stage of contract execution) provided for by the contract;

2) payment by the customer for the delivered goods, work performed (its results), services provided, as well as individual stages of contract execution;

3) interaction of the customer with the supplier (contractor, performer) when changing, terminating the contract in accordance with Article 95 of Law N 44-FZ, applying liability measures and taking other actions in the event of violation by the supplier (contractor, performer) or customer of the terms of the contract.

In accordance with Part 4 of Article 34 of Law No. 44-FZ, the contract includes a mandatory condition on the liability of the customer and the supplier (contractor, performer) for failure to fulfill or improper fulfillment of obligations stipulated by the contract.

Part 9 of Article 95 of Law No. 44-FZ provides that the customer has the right to decide on a unilateral refusal to perform a contract on the grounds provided for by the Civil Code of the Russian Federation for a unilateral refusal to fulfill certain types of obligations, provided that this was provided for by the contract.

If the supplier (contractor, performer) delivered the goods (performed the work, provided the service) stipulated by the contract, not in full, the customer has the right to terminate such a contract unilaterally or judicially, as well as to collect a penalty for improper fulfillment of obligations stipulated by the contract, or has the right to return the security for the performance of the contract contributed in the form of money, reduced by the amount of accrued fines and penalties.

Essential conditions

The essential terms of municipal contracts include:

subject of purchase;
price and payment procedure;
procedure for accepting work performed, services or goods supplied;
examination procedure;
clause on providing a tax deduction to the performer;
information about benefits if the executor of the contract is a representative of a small business;
guarantees and compensation for violation of conditions.

A typical example of a municipal contract can be viewed here.

For the subject of purchase - goods - the technical characteristics, quantity and purpose are indicated in accordance with those given in the procurement documentation and the purchase application, as well as the product number according to the all-Russian classification. When ordering work or services, the desired end result with specific parameters is described.

For the price, its final fixed value is indicated for the entire period of execution of the contract (Part 2 of Article 34 44-FZ), and if the exact volume of supplies (work, services) cannot be determined in advance, then the maximum contract price must be indicated.

In the section on the procedure for accepting the result by the customer, you must indicate the number of members of the acceptance committee (there must be at least 5 people, according to Part 6 of Article 94 of 44-FZ).

It is important to take into account that the essential terms of the municipal contract are determined by the procurement documentation, the content of the winning bidder’s application and can only be changed by agreement of the parties in the cases provided for by law 44-FZ, as well as by decision of the arbitration court.

In the description of compensation, it is necessary to indicate the amount of the penalty for each violation by the parties of the terms of the contract - missing delivery deadlines or transferring funds for stages of work, poor quality of the supplied goods, etc. Typically, the penalty for delay is 1/300 of the Central Bank rate of the contract value for each day of delay , but can be increased by agreement of the parties.

Letter of the Ministry of Finance of Russia dated November 7, 2017 No. 24-03-08/73293

In accordance with Part 1 of Article 94 of Law N 44-FZ, contract execution includes the following set of measures implemented after the conclusion of the contract and aimed at achieving procurement goals through interaction between the customer and the supplier (contractor, performer) in accordance with civil law and Law N 44-FZ, including

1) acceptance of the delivered goods, completed work (its results), rendered services, as well as individual stages of delivery of goods, performance of work, provision of services (hereinafter referred to as a separate stage of contract execution) provided for by the contract.

2) payment by the customer for the delivered goods, work performed (its results), services provided, as well as individual stages of the contract.

According to Part 7 of Article 94 of Law N 44-FZ, acceptance of the results of a separate stage of contract execution, as well as goods delivered, work performed or services rendered is carried out in the manner and within the time frame established by the contract, and is drawn up in an acceptance document, which is signed by the customer (in the case creation of an acceptance committee is signed by all members of the acceptance committee and approved by the customer), or the customer sends a reasoned refusal to sign such a document to the supplier (contractor, performer) within the same time frame in writing.

Based on the systemic interpretation of Law No. 44-FZ, the deadlines established by the customer in the contract for acceptance of the delivered goods, work performed (its results) or services provided, as well as the deadlines for processing the results of such acceptance, are not included in the deadline for fulfilling the main obligation stipulated by the contract.

When calculating by the customer the amount of the penalty accrued for each day of delay in the fulfillment of the obligation by the supplier (contractor, performer), the days required for the customer to accept the goods delivered, the work performed (its results) or the service rendered, or the registration of the results of such acceptance, are not taken into account, unless otherwise provided contract.

What is a government contract under 44-FZ

Transactions concluded between business entities in the field of public procurement are regulated by the provisions of 44-FZ and are formalized in a document called a state contract. The fact is that one of the parties to the transaction is the state customer, purchasing goods, services and work for its own needs.

Government agencies, as well as government agencies at the federal, regional and local levels, can act as government customers. Accordingly, they represent the interests of the state, regions or municipalities.

The second party that enters into a contract under 44-FZ is any legal entity (except for representatives of offshore companies) and individuals, as well as private entrepreneurs. In accordance with the law, certain categories of entities are granted a number of preferences when concluding contracts. In particular, small and medium-sized businesses can count on benefits.

A government contract is a civil contract, the difference from a regular contract is the presence of certain provisions regulated by law 44-FZ due to the fact that one of the counterparties is the state customer.

Let us highlight specific elements of a government contract that are not included in a regular contract:

The first stage in concluding a government contract under 44-FZ is the competitive procedure for selecting a contractor. This agreement can sometimes be drawn up without holding a tender - in cases regulated by the above-mentioned normative act. The law does not prohibit the organization of competitive procedures for business entities entering into transactions outside the scope of public procurement. Such a mechanism helps enterprises reduce costs, but in practice it is rarely used; usually transactions are concluded by one party providing an offer and its acceptance by the counterparty.
When concluding a contract under 44-FZ, the terms of all stages are clearly outlined, whereas under a regular contract the parties set the terms at their own request.
The Civil Code of the Russian Federation defines the concept of essential terms of a contract. In relation to government procurement, they are also relevant, but additional provisions are introduced into the list on the basis of 44-FZ.
Article 34 of the 44-FZ provides for the mandatory inclusion in the text of a state contract of clauses on the responsibility of the parties for violation of the terms of the contract, and these provisions cannot be changed. When concluding a simple contract, subjects have the right to determine the degree of responsibility themselves or can be guided by the provisions of the Civil Code of the Russian Federation.

Acceptance of goods, works, services

of at least 5 people may be created to accept the delivered goods, work performed or services provided, the results of a separate stage of contract execution

- Acceptance of the results of a separate stage of contract execution, as well as goods delivered, work performed or services rendered:

a) Carried out in the manner and within the time limits established by the contract,

ACCEPTANCE – an acceptance document is drawn up and signed by the customer (in the case of creating an acceptance committee, it is signed by all members of the acceptance committee and approved by the customer)

REFUSAL OF ACCEPTANCE – the customer sends a reasoned refusal to sign the acceptance document (work completion certificate, ...) to the supplier (contractor, performer) within the same time frame in writing.

b) If experts and expert organizations are involved, when making a decision on acceptance or refusal of acceptance, the acceptance committee must take into account the proposals of experts reflected in the conclusion based on the results of the said examination

c) If the identified discrepancy does not prevent acceptance and is eliminated by the supplier (contractor, performer), the customer has the right not to refuse acceptance

*IMPORTANT! Acceptance date = Date of signing the acceptance document

Government contract ID in invoices

On July 1, 2021, changes to Art. 169 of the Tax Code of the Russian Federation.

The Tax Code of the Russian Federation prescribes changing the list of fields to be filled in in invoices. One of the innovations of the form is a field where it is necessary to indicate the identifier of the government contract, if available.

The changes also affected the adjustment invoice.

Sample Invoice Form 2020

We can say that taking part in competitions and auctions for the right to conclude and execute a government contract is a very responsible and difficult task. To ensure that the signing of the contract goes without any problems, we suggest you use the services of the RusTender company. Our specialists have been working with bidding under 44-FZ for several years and will help even in the most complex and controversial issues.

The material is the property of tender-rus.ru. Any use of the article without indicating the source is prohibited in accordance with Article 1259 of the Civil Code of the Russian Federation

Preparation of a draft contract

The first step here is to check whether the procurement area has an approved draft standard contract. This will make the task easier because... A standard contract is a mandatory form; nothing can be changed in it, only supplemented.

Regarding the development of an individual draft contract, we recommend studying the ready-made solution in the ConsultantPlus system. You can log in to the system using your login or use our link and get a free trial access for 2 days.

We propose to figure out together “how a standard contract for the supply of food products is applied.”

Please note that an agreement under 44-FZ can also be concluded for purchases of unknown volume. In this case, you need to draw up a framework agreement. We read how to draw it up in the article “Framework Agreement under 44-FZ”.