home Success stories Obligations under a contract that do not have a monetary value. The government has revised fines for violations of government orders

Obligations under a contract that do not have a monetary value. The government has revised fines for violations of government orders

The White House, which has not yet been able to implement reform of the system of government procurement and procurement of state-owned companies - the lobbying of the latter has postponed the implementation of government initiatives indefinitely - has begun to clarify the settings of the system, for which the issuance of a government decree is sufficient. On Friday, the government published new fines for failure to fulfill obligations under government contracts. The document significantly reduces sanctions for government customers, large suppliers and small businesses.

The White House has reviewed fines for improper fulfillment of obligations (except for late fulfillment) within the framework of government procurement - a government decree regulating them in a new way was published on Friday.

Now such fines can be charged not only as a percentage of the cost of the entire contract, but also of the cost of its stage. The size of the fines themselves are also changing - and the direct beneficiaries of the innovations will be large suppliers, to whom the government has met halfway by easing sanctions for them. Thus, the previous version of the document for all contracts is more expensive than 100 million rubles. provided for penalties in the amount of 0.5% of the contract price. Now the authorities are describing a more detailed differentiation for such contracts - the 0.5% rate will remain for contracts worth from 100 million to 500 million rubles. For contracts up to 1 billion rubles. the fine will be 0.4%, and for contracts up to 2 billion rubles - 0.3%. For contracts in the range from 2 billion to 5 billion rubles. the fine will be twice as low - 0.25%. For contracts no more than 10 billion rubles. a fine of 0.2% of its price is provided, and above this amount - 0.1%.

At the same time, the White House completely abolished fines calculated as a percentage of the contract value for government customers who do not fulfill their obligations. In the previous version of the document, they ranged from 2.5% (contracts up to 3 million rubles) to 0.5% (contracts over 100 million rubles), that is, from 75 thousand to 500 thousand rubles. Now the government is introducing fixed fines for cases of non-fulfillment of obligations by customers - the minimum fine will be 1 thousand rubles. (for low-cost contracts, the price of which does not exceed 3 million rubles), the maximum sanction - 100 thousand rubles - is provided for contracts worth more than 100 million rubles. The same fines will apply to suppliers who do not fulfill obligations that do not have a monetary value.

As noted by Anton Emelyanov, General Director of the Unified Electronic Trading Platform, sanctions for small and medium-sized businesses are also changing. Previously, they were fined on the same basis as other procurement participants, but now for contracts with SMEs worth up to 3 million rubles. the sanction for each fact of improper performance of the contract by the supplier will be 3% of their cost. A 2% fine will apply to contracts worth up to 10 million rubles, and 1% - up to 20 million rubles. inclusive. “Thus, the maximum possible fine for a SME is now 200 thousand rubles,” says Mr. Emelyanov. In the previous version of the document, the fines were much larger - 10% for a contract price of no more than 3 million rubles. and 5% - at a price from 3 million to 50 million rubles.

Let us note that the current clarifications of sanctions for violations in public procurement are cosmetic changes to the system settings, for which a government resolution is sufficient. The fate of more significant reforms, including the “electronization” of procurement (this requires amendments to the laws on the contract system and procurement of state-owned companies), remains unclear. According to Kommersant, the Ministry of Finance, which has received the authority to regulate the contract system, expects to adopt the least controversial amendments to the law on public procurement at the autumn session of the State Duma. However, the department is unlikely to be able to overcome the lobbying efforts of state-owned companies, which, in particular, are not happy with the idea of transferring their purchases from small businesses (about 2.6 trillion rubles per year) to electronic platforms for government procurement controlled by the Federal Treasury in the foreseeable future.

Evgenia Kryuchkova, Oleg Sapozhkov

Decree of the Government of the Russian Federation of August 30, 2017 No. 1042 “On approval of the Rules for determining the amount of the fine accrued in the event of improper fulfillment by the customer, non-fulfillment or improper fulfillment by the supplier (contractor, performer) of obligations stipulated by the contract (except for delay in fulfillment of obligations by the customer, supplier ( contractor, performer), and the amount of the penalty accrued for each day of delay in the fulfillment by the supplier (contractor, performer) of the obligation stipulated by the contract on amending the Decree of the Government of the Russian Federation of May 15, 2017 No. 570 and invalidating the Decree of the Government of the Russian Federation ...”

In accordance with Article 34 of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" the Government of the Russian Federation decides:

1. Approve the attached:

Determining the amount of the fine accrued in case of improper fulfillment by the customer, non-fulfillment or improper fulfillment by the supplier (contractor, performer) of obligations stipulated by the contract (except for delay in fulfillment of obligations by the customer, supplier (contractor, performer), and the amount of the penalty accrued for each day of delay in execution supplier (contractor, performer) of the obligation stipulated by the contract;

Which are included in the Decree of the Government of the Russian Federation dated May 15, 2017 No. 570 “On establishing the types and volumes of work on construction, reconstruction of capital construction projects, which the contractor is obliged to carry out independently without involving other persons in the fulfillment of its obligations under state and (or) municipal contracts, and on amendments to the Rules for determining the amount of the fine accrued in case of improper fulfillment by the customer, supplier (contractor, performer) of the obligations stipulated by the contract (except for delay in fulfillment of obligations by the customer, supplier (contractor, performer), and the amount of the penalty accrued for every day of delay in the fulfillment by the supplier (contractor, performer) of the obligation stipulated by the contract" (Collected Legislation of the Russian Federation, 2017, No. 21, Art. 3022).

2. Recognize as invalid the Decree of the Government of the Russian Federation of November 25, 2013 No. 1063 “On approval of the Rules for determining the amount of the fine accrued in the event of improper fulfillment by the customer, supplier (contractor, performer) of the obligations stipulated by the contract (except for delay in fulfillment of obligations by the customer, supplier (contractor, performer), and the amount of the penalty accrued for each day of delay in the fulfillment by the supplier (contractor, performer) of the obligation stipulated by the contract" (Collected Legislation of the Russian Federation, 2013, No. 48, Art. 6266).

3. This resolution applies to relations related to the procurement of goods, works, services to meet state and municipal needs, notices of the implementation of which are posted in the unified information system in the field of procurement or invitations to participate in which are sent after the date of entry into force of this resolution .

Rules
determining the amount of the fine accrued in case of improper fulfillment by the customer, non-fulfillment or improper fulfillment by the supplier (contractor, performer) of obligations stipulated by the contract (except for delay in fulfillment of obligations by the customer, supplier (contractor, performer), and the amount of the penalty accrued for each day of delay in fulfillment supplier (contractor, performer) of the obligation stipulated by the contract

1. These Rules establish the procedure for determining in the contract:

the amount of the fine in the form of a fixed amount accrued for improper fulfillment by the customer of the obligations provided for in the contract, with the exception of delay in fulfilling the obligations provided for in the contract;

the amount of a fine in the form of a fixed amount accrued for non-fulfillment or improper fulfillment by the supplier (contractor, performer) of the obligations stipulated by the contract, with the exception of delay in fulfilling the obligations (including the warranty obligation) stipulated by the contract;

the amount of the penalty accrued for each day of delay in the fulfillment by the supplier (contractor, performer) of the obligation stipulated by the contract, starting from the day following the day of expiration of the deadline established by the contract for fulfilling the specified obligation (hereinafter referred to as the fine, penalty).

2. The amount of the fine is established by the contract in the manner established by these Rules, in the form of a fixed amount, including calculated as a percentage of the contract price, or if the contract provides for stages of contract execution, as a percentage of the stage of contract execution (hereinafter referred to as the price of the contract (stage) ).

3. For each fact of non-fulfillment or improper fulfillment by the supplier (contractor, performer) of obligations stipulated by the contract, with the exception of delay in fulfilling obligations (including warranty obligations) stipulated by the contract, the amount of the fine is established in the form of a fixed amount, determined in the following order (for except in cases provided for in these Rules):

a) 10 percent of the contract (stage) price if the contract (stage) price does not exceed 3 million rubles;

b) 5 percent of the contract (stage) price if the contract (stage) price is from 3 million rubles to 50 million rubles (inclusive);

c) 1 percent of the contract (stage) price if the contract (stage) price is from 50 million rubles to 100 million rubles (inclusive);

d) 0.5 percent of the contract (stage) price if the contract (stage) price is from 100 million rubles to 500 million rubles (inclusive);

e) 0.4 percent of the contract (stage) price if the contract (stage) price is from 500 million rubles to 1 billion rubles (inclusive);

f) 0.3 percent of the contract (stage) price if the contract (stage) price is from 1 billion rubles to 2 billion rubles (inclusive);

g) 0.25 percent of the contract (stage) price if the contract (stage) price is from 2 billion rubles to 5 billion rubles (inclusive);

h) 0.2 percent of the contract (stage) price if the contract (stage) price is from 5 billion rubles to 10 billion rubles (inclusive);

i) 0.1 percent of the contract (stage) price if the contract (stage) price exceeds 10 billion rubles.

4. For each fact of non-fulfillment or improper fulfillment by the supplier (contractor, performer) of obligations stipulated by the contract concluded based on the results of determining the supplier (contractor, performer) in accordance with paragraph 1 of part 1 of Article 30 of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as the Federal Law), with the exception of delay in fulfilling obligations (including warranty obligations) provided for in the contract, the amount of the fine is established in the form of a fixed amount, determined in the following order:

a) 3 percent of the contract (stage) price if the contract (stage) price does not exceed 3 million rubles;

b) 2 percent of the contract (stage) price if the contract (stage) price is from 3 million rubles to 10 million rubles (inclusive);

c) 1 percent of the contract (stage) price if the contract (stage) price is from 10 million rubles to 20 million rubles (inclusive).

5. For each fact of non-fulfillment or improper fulfillment by the supplier (contractor, performer) of obligations stipulated by the contract concluded with the winner of the procurement (or with another procurement participant in cases established by Federal Law) who offered the highest price for the right to conclude the contract, the amount of the fine is calculated in the manner established by these Rules, with the exception of late fulfillment of obligations (including warranty obligations) provided for in the contract, and is established in the form of a fixed amount, determined in the following order:

a) 10 percent of the initial (maximum) contract price if the initial (maximum) contract price does not exceed 3 million rubles;

b) 5 percent of the initial (maximum) contract price if the initial (maximum) contract price ranges from 3 million rubles to 50 million rubles (inclusive);

c) 1 percent of the initial (maximum) contract price if the initial (maximum) contract price is from 50 million rubles to 100 million rubles (inclusive).

6. For each fact of non-fulfillment or improper fulfillment by the supplier (contractor, performer) of an obligation stipulated by the contract, which does not have a monetary expression, the amount of the fine is established (if there are such obligations in the contract) in the form of a fixed amount, determined in the following order:

a) 1000 rubles, if the contract price does not exceed 3 million rubles;

7. For improper fulfillment by the contractor of obligations to carry out the types and volumes of work on construction, reconstruction of capital construction projects, which the contractor is obliged to carry out independently without involving other persons in the fulfillment of his obligations under the contract, the amount of the fine is set at 5 percent of the cost of these works.

8. If, in accordance with Part 6 of Article 30 of the Federal Law, the contract provides for a condition on civil liability of suppliers (contractors, performers) for failure to fulfill the condition of involving subcontractors, co-executors from among small businesses, socially oriented non-profit organizations in the execution of the contract in the form of a fine, the fine is set at 5 percent of the volume of such attraction established by the contract.

9. For each fact of failure by the customer to fulfill obligations under the contract, with the exception of delay in fulfilling obligations under the contract, the amount of the fine is established in the form of a fixed amount, determined in the following order:

a) 1000 rubles, if the contract price does not exceed 3 million rubles (inclusive);

b) 5000 rubles, if the contract price is from 3 million rubles to 50 million rubles (inclusive);

c) 10,000 rubles, if the contract price is from 50 million rubles to 100 million rubles (inclusive);

d) 100,000 rubles, if the contract price exceeds 100 million rubles.

10. A fine is accrued for each day of delay in the fulfillment by the supplier (contractor, performer) of the obligation stipulated by the contract in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force on the date of payment of the fine from the contract price, reduced by an amount proportional to the volume of obligations stipulated by the contract and actually performed by the supplier (contractor, performer).

11. The total amount of accrued penalties (fines, penalties) for non-fulfillment or improper fulfillment by the supplier (contractor, performer) of obligations under the contract cannot exceed the contract price.

12. The total amount of accrued penalties (fines, penalties) for improper fulfillment by the customer of the obligations stipulated by the contract cannot exceed the contract price.

Changes,
which are included in the Decree of the Government of the Russian Federation dated May 15, 2017 No. 570

1. Paragraph three of paragraph 1 shall be declared invalid.

2. Subparagraph “c” of paragraph 2 should be stated as follows:

"c) the procedure for determining the amount of the fine assessed for improper fulfillment by the contractor of obligations to perform the types and volumes of work on construction, reconstruction of a capital construction project, which the contractor is obliged to perform independently without involving other persons in the fulfillment of its obligations under state and (or) municipal contracts, establishes the amount of the fine accrued in case of improper fulfillment by the customer, non-fulfillment or improper fulfillment by the supplier (contractor, performer) of the obligations stipulated by the contract (except for delay in fulfillment of obligations by the customer, supplier (contractor, performer), and the amount of the penalty accrued for each day of delay fulfillment by the supplier (contractor, performer) of the obligation stipulated by the contract, approved by the Government of the Russian Federation dated August 30, 2017 No. 1042 “On approval of the Rules for determining the amount of the fine accrued in the event of improper performance by the customer, non-fulfillment or improper performance by the supplier (contractor, performer) of obligations stipulated by the contract (except for delay in fulfillment of obligations by the customer, supplier (contractor, performer), and the amount of penalties accrued for each day of delay in the fulfillment by the supplier (contractor, performer) of the obligation provided for by the contract, on amending the resolution of the Government of the Russian Federation of May 15 2017 No. 570 and invalidation of the Decree of the Government of the Russian Federation of November 25, 2013 No. 1063."

Document overview

The rules for calculating fines in government contracts for improper fulfillment of obligations by counterparties, as well as penalties accrued for each day of delay in performance, have been revised. It is clarified that we are also talking about fines in cases of failure to fulfill obligations by the supplier (contractor, performer).

As before, the amount of the fine is established by the contract as a fixed amount, including calculated as a percentage of the contract price (or as a percentage of its stage, if execution stages are provided).

For customers, fines are set as a fixed amount in rubles (and not as a percentage). So, if the contract price exceeds 100 million rubles, then the fine will be 100 thousand rubles. (previously - 0.5% of the contract price).

Fines are detailed for each fact of non-fulfillment or improper fulfillment of obligations by the counterparty, including under government contracts, the price of which exceeds 100 million rubles.

Rules have been introduced for calculating the fine under a contract concluded as a result of a procurement, the participants of which are small businesses and socially oriented non-profit organizations.

In addition, rules have been established for calculating fines for non-fulfillment or improper fulfillment by a supplier (contractor, performer) of obligations that do not have a monetary value, as well as obligations under a contract concluded with the winner of the procurement who offered the highest price for the right to conclude the contract.

It is stipulated that the total amount of accrued penalties (fines, penalties) for non-fulfillment or improper fulfillment of obligations under the contract cannot exceed its price.

Oksana Balandina, chief editor of the State Order System

From July 1, 2018 to January 1, 2019, customers have a transition period - they are allowed to carry out both electronic and paper procedures. Starting from 2019, tenders, auctions, quotations and requests for proposals on paper will be prohibited, with eight exceptions.
Read what kind of purchases to carry out on the ETP, how to choose a site and obtain an electronic signature, what are the rules for concluding contracts during the transition period and after.

Penalties in contracts must be calculated according to new rules

From September 10, customers will calculate fines for poor quality work under the contract according to new rules. The government is canceling Resolution No. 1063, according to which fines are now calculated, and introducing new rules.

The counterparty can be fined for each violation of the terms of the contract. Previously, the question of “how many times can a supplier be fined under one contract” was not resolved, and the parties resolved disputes in court. The total amount of fines must not exceed the contract price. The rule is true for both the customer and the counterparty.

We have increased the number of contract price options used to calculate the fine. Customers set the fine as a fixed amount, which is calculated as a percentage of the contract price:

 10 percent for a contract price of up to 3 million rubles;

 5 percent - from 3 million to 50 million rubles;

 1 percent - from 50 million to 100 million rubles;

 0.5 percent - from 100 million to 500 million rubles;

 0.4 percent - from 500 million to 1 billion rubles;

 0.3 percent - from 1 billion to 2 billion rubles;

 0.25 percent - from 2 billion to 5 billion rubles;

 0.2 percent - from 5 billion to 10 billion rubles;

 0.1 percent - above 10 billion rubles.

According to the rules that are in force now, the fine for any contract price is over 100 million rubles. is 0.5 percent of the contract price.

Another innovation is separate fines for purchases from SMP and SONO:

 3 percent - at a price of up to 3 million rubles;

 2 percent - from 3 million to 10 million rubles;

 1 percent - from 10 million to 20 million rubles.

We introduced a separate scale of fines for contractors who won the procurement for the right to conclude a contract, that is, when the customer holds a tender to increase the price. The price of such contracts cannot exceed 100 million rubles. (clause 1, part 23, article 68 of Law No. 44-FZ). The fines will be:

 10 percent of the NMCC, if the NMCC does not exceed 3 million rubles;

 5 percent - for NMTsK from 3 million to 50 million rubles;

 1 percent - for NMTsK from 50 million to 100 million rubles.

These fines must be indicated in the draft contract that you conclude following the auction. If the participants reduce the contract price to 0.5 percent of the NMCC, then the operator of the electronic platform will hold a tender for the right to conclude a contract (Part 23, Article 68 of Law No. 44-FZ).

There are cases when the counterparty does not fulfill obligations without a value expression. The amount of the fine is specific amounts, not percentages of the contract price:

 1000 rub. - the contract price does not exceed 3 million rubles;

 10,000 rub. - from 50 million to 100 million rubles;

If the counterparty engages a subcontractor to perform work that it must perform independently, the fine will be 5 percent of the cost of the work. The amount of the fine remained the same, however, an amendment was made to the Government of the Russian Federation Decree No. 570 dated May 15, 2017: the amount of the fine must be taken into account not according to the rules of the Government of the Russian Federation Resolution No. 1063 dated November 25, 2013, but according to the new Decree of the Government of the Russian Federation dated August 30, 2017 No. 1042.

The counterparty will pay a fine if it should involve subcontractors from SMP and SONO, but does not do so. The fine will be 5 percent of the volume that the subcontractor must complete.

Customers will now pay specific amounts for violations of the contract, rather than a percentage of the contract price:

 1000 rubles, if the contract price does not exceed 3 million rubles;

 5000 rub. - from 3 million to 50 million rubles;

 10,000 rub. - from 50 million to 100 million rubles.

 100,000 rub. - above 100 million rubles.

The new rules need to be applied only to those procurements, notices of which were published in the Unified Information System after the day the new rules entered into force. The resolution will come into force on September 9, 2017.

Paragraph 6 of the Decree of the Government of the Russian Federation dated August 30, 2017 No. 1042 establishes that for each fact of non-fulfillment or improper fulfillment by a supplier (contractor, performer) of an obligation stipulated by the contract, which does not have a value expression, the amount of the fine is established (if there are such obligations in the contract) in the form of a fixed amount.

Thus, paragraph 6 of this resolution applies in cases where the amount of damage cannot be determined initially, for example, warranty obligations for supplied equipment, it is initially impossible to predict that during operation there will be a need to repair all equipment or only certain spare parts

Magazine "Goszakupki.ru" is a magazine on the pages of which practical explanations are given by leading industry experts, and materials are prepared with the participation of specialists from the Federal Antimonopoly Service and the Ministry of Finance. All articles in the magazine are of the highest degree of reliability.

Since September 9, 2017, the rules by which fines and penalties are assessed by customers under 44-FZ have been in effect in accordance with the Decree of the Government of the Russian Federation of August 30, 2017 No. 1042. Let’s look at the new rules and give some examples of the practice of their application that has developed to date.

Do you need high-quality knowledge and a certificate of advanced training? Register for the online course " " The program was developed based on the requirements of the professional standard “Procurement Specialist” The provision regarding the liability of the parties is essential and must be agreed upon between the parties to the contract. The exception is cases specified in Part 15 of Art. 34 for certain reasons for purchasing from a single supplier.

As a measure of liability for the parties to the contract for non-fulfillment or improper fulfillment of obligations, the collection of a penalty is provided in 2 forms: a fine and a penalty.

Penalty

And suppliers in the form of penalties are established for violation of deadlines for fulfilling contractual obligations in the amount of 1/300 of the key rate of the Central Bank of the Russian Federation in force on the date of payment of penalties from the amount not paid on time.

Calculate penalties using the following formula:

Penalty = Contract price x (1/300 x Key rate) x number of days of delay

The Ministry of Finance of the Russian Federation in a letter dated 04/13/2016 No. 02-04-06/21780 explained that penalties are accrued for each calendar day of delay, including weekends and holidays, starting from the day following the day of expiration of the obligation under the contract.

It is unacceptable to charge penalties in an amount exceeding 1/300 of the key rate (see decision, order of the Omsk OFAS dated October 16, 2017 No. 03.10.1/279-2017).

If the supplier has not fully fulfilled its obligations, the amount of the penalty is reduced by an amount proportional to the volume of obligations fulfilled by the supplier. When calculating the number of days of delay, you should exclude the days required for the customer to accept (register its results) the goods delivered, the work performed, the services rendered, unless otherwise provided by the contract (Letter of the Ministry of Finance of Russia dated November 7, 2017 No. 24-03-08/73293).

The fine is established for violation of other contractual obligations not related to deadlines, for example, for each fact of failure by the parties to fulfill their obligations under the contract. Decree of the Government of the Russian Federation No. 1042 establishes fixed fine amounts. Let's consider their varieties.

Fines for the customer

For each fact of failure by the customer to fulfill obligations stipulated by the contract, the amount of the fine is established in the form of a fixed amount, determined in the following order:

1000 rubles if the contract price does not exceed 3 million rubles (inclusive);

The fine should be calculated based on the contract price, and not on the initial (maximum) price of such a contract (decision and order of the Kemerovo OFAS dated November 28, 2017 in case No. 828/3-2017).

Please note that regardless of whether the contract is for 30,000 rubles or 300,000 rubles, or even for 3,000,000 rubles, the fine will be 1,000 rubles.

Fines for the supplier

For each fact of non-fulfillment or improper fulfillment by the supplier (contractor, performer) of obligations stipulated by the contract, the amount of the fine is established in the form of a fixed amount, determined in the following order:

10% of the contract (stage) price if the contract (stage) price does not exceed 3 million rubles;
5% of the contract (stage) price if the contract (stage) price is from 3 million rubles to 50 million rubles (inclusive);
1% of the contract (stage) price if the contract (stage) price is from 50 million rubles to 100 million rubles (inclusive);
0.5% of the contract (stage) price if the contract (stage) price is from 100 million rubles to 500 million rubles (inclusive);
0.4% of the contract (stage) price if the contract (stage) price is from 500 million rubles to 1 billion rubles (inclusive);
0.3% of the contract (stage) price if the contract (stage) price is from 1 billion rubles to 2 billion rubles (inclusive);
0.25% of the contract (stage) price if the contract (stage) price is from 2 billion rubles to 5 billion rubles (inclusive);
0.2% of the contract (stage) price if the contract (stage) price is from 5 billion rubles to 10 billion rubles (inclusive);
0.1% of the contract (stage) price if the contract (stage) price exceeds 10 billion rubles.

From this range of fines, choose one that corresponds to the price of your contract. In situations where the customer prescribes all possible fines, even with an explanation that he will exclude from the conditions everything except general fines for the supplier when he sends the contract to the winner, such actions of the customer are recognized as a violation of the requirements of contract legislation (decision of the Omsk OFAS dated November 23, 2017 No. 03- 10.1/298-2017).

Fines for the supplier - SMP or SONO

Special liability conditions are established for cases of concluding a contract with SMP/SONO.

For each fact of non-fulfillment or improper fulfillment by the supplier (contractor, performer) of obligations stipulated by the contract based on the results of procurement from SMP/SONO, the amount of the fine is established in the form of a fixed amount, determined in the following order:

3% of the contract (stage) price if the contract (stage) price does not exceed 3 million rubles;
2% of the contract (stage) price if the contract (stage) price is from 3 million rubles to 10 million rubles (inclusive);
1% of the contract (stage) price if the contract (stage) price is from 10 million rubles to 20 million rubles (inclusive).

Please note that if you carried out a procurement on a general basis, and the participant who is an SMP/SONO wins, the contract is nevertheless concluded on the terms of the announced purchase, without changing the terms of fines for the SMP/SONO.

The situation is similar if the announced purchase for SMP/SONO did not take place due to the recognition of only 1 application as meeting the requirements and the subsequent conclusion of a contact under clause 25, part 1, art. 93 from a single supplier, fines must be prescribed in accordance with the terms of the failed purchase under clause 4 of the Government of the Russian Federation No. 1042 for NSR/SONO entities (decision of the Ivanovsky OFAS dated October 23, 2017 No. 07-15/2017-189).

Penalties for the supplier who offered the highest price for the right to enter into a contract

For each fact of non-fulfillment or improper fulfillment by the supplier (contractor, performer) of obligations stipulated by the contract concluded with the winner of the procurement who offered the highest price for the right to conclude the contract, the amount of the fine is established in the form of a fixed amount, determined in the following order:

10% of the initial (maximum) contract price (hereinafter referred to as the NMCP) if the NMCP does not exceed 3 million rubles;
5% NMCC if the NMCC is from 3 million rubles to 50 million rubles (inclusive);
1% NMCC if the NMCC is from 50 million rubles to 100 million rubles (inclusive).

These provisions apply only in the case of an electronic auction with the so-called transition through “0”. Accordingly, when holding an auction, the conditions under consideration should be included in the draft contract, since the customer never knows in advance how the situation will develop, whether procurement participants will be reduced to “0”. Moreover, in the absence of appropriate conditions, antimonopoly authorities indicate to customers a violation of the requirements of contract legislation (decision of the Chelyabinsk OFAS dated October 30, 2017 No. 732-zh/2017).

Fines for the supplier for improper fulfillment of an obligation that has no monetary value

For each fact of non-fulfillment or improper fulfillment by the supplier (contractor, performer) of an obligation stipulated by the contract, which does not have a value expression, the amount of the fine is established (if there are such obligations in the contract) in the form of a fixed amount, determined in the following order:

1000 rubles if the contract price does not exceed 3 million rubles;
5000 rubles, if the contract price is from 3 million rubles to 50 million rubles (inclusive);
10,000 rubles, if the contract price is from 50 million rubles to 100 million rubles (inclusive);
100,000 rubles if the contract price exceeds 100 million rubles.

The fine is based on the contract price. The contract must highlight the corresponding obligations that do not have a monetary expression, the violation of which will be the basis for the application of established fines. These may be obligations to provide the relevant shipping documents, requirements for the delivery of goods, requirements for not exceeding the permissible level of defects, etc. If the contract does not contain appropriate measures of liability for violation of obligations that do not have a monetary expression (if any), the customer may be fined for approving the documentation in violation of the requirements of contract legislation (see the decision of the Chelyabinsk OFAS dated October 20, 2017 in case No. 713-zh/2017).

Decree of the Government of the Russian Federation No. 1042 also established special fines for procurement participants for failure to comply with certain types of requirements:

The fine for improper fulfillment by the contractor of obligations to carry out the types and volumes of work on construction, reconstruction of capital construction projects, which the contractor is obliged to carry out independently without involving other persons in the fulfillment of his obligations under the contract, is set at 5% of the cost of these works.
A fine for the supplier, collected if, in accordance with Part 6 of Art. 30 of the contract provides for a condition on civil liability for failure to fulfill the condition on involving subcontractors and co-executors from among the SMP (SONCO) in the execution of the contract - set at 5% of the volume of such involvement established by the contract.

When describing the conditions for the application of liability measures for the parties to the contract, it is necessary, among other things, to establish the condition that the total amount of the penalty cannot exceed the contract price. The absence of such a condition is regarded by the control authorities as a violation of the requirements of the legislation on the contract system (decision of the Chelyabinsk OFAS dated November 3, 2017 in case No. 257-VP/2017).

The liability measures discussed above for the parties to the contract require the customer to carefully study the draft contract and analyze the relevant conditions for holding liable for non-fulfillment or improper fulfillment of contractual obligations. The customer should specify in the contract all the specifics of the application of the penalty. Indicating a simple reference to the application of a legal penalty indicates improper fulfillment by customers of their obligation to comply with the requirements of contract legislation (decision of the Omsk OFAS dated November 15, 2017 No. 03-10.1/295-2017).

In conclusion, it should also be noted that when concluding individual contracts that have special regulatory regulations, the customer should be guided by the relevant regulations. So, for example, when concluding an energy supply contract, a penalty is established, as defined in paragraph. 8 hours 2 tbsp. 37 of the Federal Law of March 26, 2003 No. 35-FZ “On Electric Power Industry”. This position is set out, among other things, in the Review of Judicial Practice, approved by the Presidium of the Supreme Court of the Russian Federation on October 19, 2016. Similarly, when concluding an agreement for the provision of services under compulsory motor liability insurance, the penalty is established in accordance with paragraph 21 of Article 12 of the Federal Law of April 25, 2002 No. 40-FZ “On compulsory insurance of civil liability of vehicle owners”, and not in accordance with the Federal Law on contract system and Decree of the Government of the Russian Federation No. 1042.