On the importance of the protocol of disagreements in electronic procedures
Auctions are held on the ETP, and contracts based on the results are concluded in electronic form. In fact, the contractor and the customer do not have any contact throughout the entire procedure. And no wonder, because government procurement legislation prohibits the parties from negotiating.
The government contract is drawn up according to a template and does not allow any liberties. In addition, the law requires that the signed contract exactly correspond to the project included in the procurement documents. But when specific information on the transaction
— details of the parties, terms of execution of the agreement — errors are possible. And if the contractor notices an inaccuracy, he must point it out to the customer through a protocol of disagreements.
Registration in the ERUZ UIS
From January 1 2020 , in order to participate in bidding under 44-FZ, 223-FZ and 615-PP, registration in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov is .ru.We provide a service for registration in the ERUZ in the EIS:
Order registration in the EIS
You must understand that the possibilities for using the protocol are limited . Firstly, the essential terms of the contract cannot be changed in any case. Secondly, the text of the contract must completely repeat the text of the project. So the supplier will not be able to offer the customer to add some provisions to the contract.
How to submit a protocol of disagreements under 44-FZ
Next, we will tell you how to proceed when drawing up a protocol of disagreements under 44-FZ using the example of the RTS-tender electronic platform.
- Log in to your personal account using your electronic signature.
- Open the "Contracts" tab. Using the suggested filters, find the government contract you need. Click on the contract card number.
- Click on “Create”.
- Briefly state the reason that became the basis for drawing up a protocol of disagreements under 44-FZ, attach the document itself, which needs to be drawn up in advance, as a separate file.
- Click the Continue button. After this, the creation of the document will be completed and it will be automatically published in the EIS.
- The contract card will be updated, the status will change, the file with the attached document can be seen in the corresponding section.
Drawing up a protocol
Having received the draft contract from the customer, the auction winner must read it and sign it within the prescribed period. If he doesn’t understand something or doesn’t agree with something, he draws up a protocol of disagreements. All this is done through ETP. At the same time, there is no regulated form of the protocol of disagreements , that is, the text can be at the discretion of the applicant.
As for the form, sometimes the protocol is drawn up in the form of a letter signed by the head of the organization. This letter is scanned and transmitted to the other party through the platform. This is unnecessary, because all documents on the ETP are in any case endorsed with an electronic signature , so it is enough to type the text of the message and attach the necessary documents, if necessary.
In the protocol, the winner must indicate the provisions of the draft contract that do not correspond to what was indicated in the documentation or application of the participant.
Please note that if the winner does not sign the contract within the allotted time and does not post the protocol of disagreement, then he is considered to have evaded signing the contract.
Protocol of disagreements to the agreement under 44-FZ: deadlines, sample, instructions for drawing up
As a participant in an electronic auction, the winning supplier has the right to agree with the customer on certain terms of the contract with which he does not agree or which require correction due to changed conditions. For example, during the procurement procedure your details have changed, but they are already specified in the contract. What can be done?
In this case, you can draw up a separate document - a protocol of disagreements to the agreement. However, it must be borne in mind that according to 44-FZ, the protocol of disagreements is applicable only in relation to electronic auctions
.
Application cases
You can resort to drawing up a protocol of disagreements to the contract if it is necessary to correct or exclude controversial clauses of the contract, as well as to introduce new ones
. In practice, you may encounter situations in which this measure will be the best, and maybe the only way out. In the example above: your bank details have changed, and you, as a participant who does not have the right to make adjustments to the draft contract, use a protocol to inform the customer that the information requires changes. Another common case that requires correction of the draft contract is the discrepancy between the contractual terms and conditions with those presented in the documentation and/or notice for a particular purchase. The protocol of disagreements to the agreement will allow this issue to be resolved.
Protocol of disagreements: deadlines for registration
In accordance with Article 70 of Law No. 44 - Federal Law, the supplier may send a protocol of disagreements to the Unified Information System within a period not exceeding 13 calendar days from the date of publication of the final protocol. If this deadline is not met, the participant will be considered as having evaded signing the contract. Many suppliers use this document as a way to “delay” extra time to raise funds to secure a contract. To do this, it is enough to indicate the smallest formality that needs to be corrected, for example, adding the OGRN code in the details or changing the current account.
Sample protocol of disagreements to the agreement
Since the legislation does not provide any criteria for drawing up a protocol of disagreements within the framework of 44-FZ, the procurement participant can draw it up in free form.
Instructions for compilation:
If you decide to resort to this measure, it is enough to create an electronic document in any form (for convenience, you can arrange it in the form of a table).
Include in the document all inconsistencies regarding the provisions of the contract. The main condition for the content of the protocol of disagreements under 44-FZ is a specific indication of the discrepancy between the information in the documentation and the draft contract. Information about the product in the protocol and the application should not differ. It is unacceptable to send the customer an adjusted draft contract instead of the protocol; the court will consider this a violation.
You can edit the essential terms of the contract only if they do not correspond to the procurement notice.
Details and contact details of the parties are included in the protocol at your discretion.
Seal the document with the electronic signature of a representative authorized to sign the contract. There is no need to create a scan of the signed document.
Send a protocol of disagreements to the agreement to the electronic platform.
After publishing the protocol of disagreements, the customer will post a revised draft contract in the Unified Information System within three working days, taking into account your comments. If your instructions seem incorrect to the customer, he will re-post the original draft contract, indicating the reasons for the refusal in a separate document.
You, depending on whether you are satisfied with the terms of the draft contract this time or not: either publish the signed contract on the site within three days, not forgetting to provide the contract security, if required, or have the right to prepare another protocol of disagreements.
Normative base
Art. 70, part 4, 5, 6, 13 Federal Law - 44
Letter of the Ministry of Economic Development of Russia dated August 21, 2015 No. D28i-2475,
Determination dated 10/09/2015 No. 308 – KG15 – 13770
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Deadlines
Having received the contract, the winner of an auction or other electronic procedure can study it for 5 days. During this period, he must draw up a protocol of disagreements, and if this is not necessary, sign a contract.
It is worth noting that just recently, before July 1, 2021, it was possible to submit several protocols of disagreement one after another. At that time, the procedure for concluding a contract based on the results of an electronic auction was regulated by Article 70 of Law 44-FZ, which has now lost force. Now the process of concluding an electronic contract is regulated by Article 82.3 of Law 44-FZ . It also contains all the provisions that relate to the protocol of disagreements. They fully apply not only to the electronic auction, but also to all other electronic procedures that, as we know, should start working in the near future.
Protocol of disagreements as a tool for stretching time
According to the old rules, the process of “protocol” communication could last quite a long time - the last protocol could be sent on the 13th day. This was sometimes used by suppliers to extend the time available for signing a contract. For example, if there were problems with posting collateral or obtaining a bank guarantee. Moreover, it happened that through the protocol and the response to it, one party forced the other to violate the rules for signing the contract.
Therefore, in the new version of Law 44-FZ, the rules for filing a protocol of disagreements have been tightened. It is understood that the supplier should set out all its complaints regarding the text of the contract in one protocol, especially since they usually relate to technical inaccuracies.
Procedure for preparing, sending and considering a protocol of disagreements under 44-FZ
- The dispute protocol is filled out on the electronic trading platform and sent from there to the customer.
- The contractor must appoint a person responsible for participation in the tender, who signs the document with his enhanced electronic signature.
- The customer simultaneously sends the contractor a draft contract and places it in the Unified Information System. After this, the contractor has 5 days to draw up and send a protocol of disagreements under 44-FZ. Only one such document is allowed to be drawn up for one contract.
- The customer is given three working days to review the protocol of disagreements under 44-FZ. After this, he must make adjustments to the contract and publish it in the EIS. If the customer does not want to change the terms of the contract, then he again publishes the old version and motivates his refusal to change its content.
- After the customer agrees on the protocol of disagreements under 44-FZ, the contractor must sign the contract within 3 days and place it in the Unified Information System. If the customer refuses to take into account the requirements of the winner of the competition, the latter has the right to send a complaint about this to the FAS. If the contractor does not take any action, he will be recognized as evading signing the contract.
Often, tender participants have a question: is it allowed to draw up the second and third protocol of disagreements under 44-FZ, how many times can it be sent? From July 1, 2021, a provision appeared in 44-FZ, according to which the winner of the competition has the right to draw up only one such document. That is, there will be no second attempt to influence the auction organizer.
Sometimes it happens that the winning bidder does not have time to organize work to fulfill the contract by the required time or is unable to provide security on time. In this case, he may consider the possibility of expressing disagreement with the provisions of the contract as a convenient reason to delay the deadlines.
Well, this is far from the best and even dangerous solution. If the comments set out in the protocol of disagreements turn out to be formal, then the customer has a reason to accuse the winner of the competition of evading the conclusion of a contract or to complain to the FAS. If a potential performer foresees that he will objectively not be able to meet the deadlines, then it would be better to pay a penalty than to waste time in this way. The evading winner is deprived of access to the auction for 2 years.
