Instructions for unilateral refusal to execute a government contract: as amended in 2022

The customer’s unilateral refusal to fulfill the 44-FZ contract is a way to terminate the fulfillment of obligations under the contract. The supplier also has this right. The order will change twice in 2022.

The article was updated by expert Ella Zaluzhnaya

Unilateral refusal to execute a government contract: instructions for the customer

Here is how unilateral termination under 44-FZ occurs step by step in 2021:

1. We identify the grounds for termination.
2. We decide to terminate.
3. We notify the offender.
4. We check that he is properly notified.
5. We cancel the decision if the shortcomings have been corrected.
6. We are terminating the government contract.
7. We conclude a new deal with the second participant.

In 2022, the algorithm for unilaterally terminating a contract under 44-FZ will change due to the entry into force of Part 12.1 of Art. 95 44-FZ.

After identifying the grounds, customers will have to use the Unified Information System to formulate and sign a decision on unilateral refusal.

Within an hour after publication, it will automatically be sent to the supplier. The document is considered received by the supplier on the day of receipt in accordance with the time zone in which it is located.

The direction of the decision is recognized as proper notification to the supplier. It turns out that the date of proper notification is the date of receipt by the supplier.

In effect, the unilateral refusal process will be shortened by eliminating the time period given to notify the supplier.

IMPORTANT!

This algorithm will work from 07/01/2022. And from 01/01/2022 until this date, a transitional stage applies. This is indicated in paragraph 6 of Art. 8 360-FZ.

Still have questions? ConsultantPlus experts discussed how to terminate a contract under 44-FZ unilaterally by the customer in 2021. Use these instructions for free.

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Principles of termination of a contract

The traditions of business relations say that a contract loses its force at the end of the time for which it was concluded, if all obligations between the contracting parties have been fulfilled. Either through the judicial authorities, by mutual agreement or, when permitted by the concluded contract, unilaterally.

Svetlana Zherdina,

lawyer of the international projects group of the law firm VEGAS LEX

The contract must clearly list the grounds for unilateral termination of the contract. Otherwise, the court may refuse such termination (see, for example, Ruling of the Supreme Court of the Russian Federation dated August 21, 2015 No. 310-ES15-4004 in case No. A08-7981/2013, where the court considered that the indication in the contract of mandatory preliminary notification of the party about the upcoming unilateral termination of the contract is not an independent basis for termination of the contract).

Article No. 450 of the Civil Code of the Russian Federation “Grounds for amendment and termination of a contract” determines that if the employment relationship between a company employee and his employer, rental or credit conditions, as well as the terms of a sales transaction are violated, ended or changed, then the contract can be terminated. Article No. 451 of the Civil Code of the Russian Federation “Amendment and termination of a contract due to a significant change in circumstances” establishes the principle that if external conditions have become completely different, so that in the new situation the parties would not enter into a deal, then the contract can be terminated.

The Civil Code of the Russian Federation also regulates that an agreement may contain a prohibition on breaking, in addition, such a restriction can be determined by law. Moreover, the restriction can apply to the entire document or only to some part of it.

Ideally, the parties include in the contract a clause regarding the rules for termination. Typically, this clause states that the parties retain the right to terminate the transaction by drawing up an additional agreement to this effect. It is written in the same form as the document being terminated. An exception is if the law, the contract itself, or the accepted unspoken rules of business relationships do not require a different format.

Termination of the contract by court

If the parties to the transaction were unable to resolve their issue amicably, then the court can resolve this problem. However, at least once the parties must sit down at the negotiating table. If they have not done this, the court will not take the case, but will require that this rule be followed. And only if they could not find a common opinion, or one of the participants refuses to terminate the contract, or ignores the proposal to terminate it within the specified time, then the court will accept their case for consideration.

By the way, the court does not always decide to terminate the contract. If during the hearing of the case it turns out that such an outcome violates the interests of society, or the persons who drew up the agreement will incur costs higher than those incurred by the execution of the transaction, then the court is able to make a decision to change the agreement. But if it is nevertheless terminated, then the court can divide the resulting costs between the parties to the contract according to the principle of fair grounds.

Article No. 451 of the Civil Code of the Russian Federation “Amendment and termination of a contract due to a significant change in circumstances” lists the conditions under which the judicial authority is able to make such a decision:

1) when the contract was concluded, the parties believed that external circumstances would not change negatively;

2) the changes that occurred could neither be foreseen nor overcome under the conditions provided for by the specifics of the contract;

3) if the parties continue to fulfill their obligations under changed conditions, then the interested party will be deprived of the benefits that they could count on when concluding the transaction;

4) business rules or the essence of the transaction do not provide that the risks and dangers of changes in external conditions or circumstances will be the burden of the interested party.

Svetlana Zherdina,

lawyer of the international projects group of the law firm VEGAS LEX

When considering a dispute about amendment and termination of a contract due to a significant change in circumstances, the court will have to establish the existence of a significant change in circumstances, the time of its occurrence, and the ability to reasonably foresee this change. According to established judicial practice, a change in foreign currency exchange rates, a sharp deterioration in the financial condition of one of the parties, or inflation are not recognized as a significant change in circumstances.

In the event that one of the partners in the partnership comes to the understanding that the other party is significantly violating the terms of the document, this may become the basis for demanding compensation for losses that arise as a result of breaking the contract. By agreeing, each party hoped to receive a certain benefit. If termination of a contract results in damages, the law protects the good party.

If one party has the right to terminate a transaction unilaterally, then the law requires that this advantage be used in good faith and reasonably within the limits of existing legal norms. However, the law does not explain what it means conscientiously and reasonably, their boundaries and measure. This means that this measure is determined by the judge. He, depending on his place of residence, will be guided by his regional criteria, customs and norms. Since what is considered reasonable in Yuzhno-Sakhalinsk is not necessarily considered so in St. Petersburg.

The obligations stipulated in the text of the transaction usually cease upon its termination. But there are exceptions. For example, one of the parties is obliged to pay for the goods received, or to pay rent, or to return the property entrusted to it. Warranties for repairs or maintenance are not limited and are valid.

The agreement specifies the existence of claims. If there are complaints, then their essence and when they will be satisfied are indicated as specifically as possible. And it doesn’t matter that the contractual relationship is over, the requirements listed in the contract are binding.

General rules for drawing up a termination agreement

Article No. 452 of the Civil Code of the Russian Federation “Procedure for amending and terminating a contract” establishes that the agreement is drawn up in the same form and form as the contract planned for termination, unless a special limitation or addition is allowed or specified. When a contract is drawn up and concluded in writing, the agreement to terminate it must be written. If the agreement is certified by a notary or registered with government agencies, then the new document must be certified in a notary’s office or registered with government agencies.

This agreement is not strictly or binding. It is usually written in free form; the text should contain several key points:

1. Full name of the agreement, the validity of which is terminated;

2. Full name of the parties, names of organizations, as well as information about the position, first name, patronymic and last name of persons who are authorized to enter into this agreement;

3. The reasons that led to the termination of cooperation.

4. Mutual claims and unfulfilled obligations. If there are any, then it is written down what exactly the claims and obligations are and within what time they must be fulfilled.

5. The time from which the concluded agreement gains legal force, usually from the moment the document is signed, or from a certain date.

6. Number of copies of the agreement and their legal force.

7. Contact details of the parties - addresses, bank details.

8. Data of representatives of the parties (name, surname, position), their signatures and seals of organizations.

All clauses of the agreement must be formulated as clearly and unambiguously as possible, without the possibility of double or expanded interpretation. This approach will help in the event of a possible lawsuit if one of the parties wants to recover additional or unforeseen damages from the other party. If there are important additional documents, it is recommended to list them in the body of the document being compiled.

Svetlana Zherdina,

lawyer of the international projects group of the law firm VEGAS LEX

It is especially important in the termination agreement to clearly establish a list of obligations that remain after termination of the contract. Such obligations, in accordance with the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 6, 2014 No. 35 “On the consequences of termination of the contract,” may include, in particular, warranty obligations in relation to goods or work under a subsequently terminated contract, a condition on the consideration of disputes under the contract in arbitration, agreements about jurisdiction, applicable law, etc.

Lease termination agreement

The possibility of terminating a lease must be provided for during the preparation phase for signing a lease agreement. This is an extreme measure, but if circumstances develop this way, then both the landlord and the tenant must be prepared for such a turn of events.

According to Article No. 609 of the Civil Code of the Russian Federation “Form and state registration of a lease agreement,” when the lease is made for more than a year (over 365 days), or the party to the lease is a legal entity, then, regardless of the duration of the lease, it must be registered in Rosreestr, the State service of state registration, cadastre and cartography. The document itself is drawn up in writing. This means that the termination agreement is also executed in writing and registered with Rosreestr.

Mutual agreement is the easiest way to end a tenancy. Such a document can be concluded at any time. It is necessary to indicate in it that the property has been returned to the lessor, and to draw up a corresponding deed of transfer of property, which will be an integral part of the agreement.

Svetlana Zherdina

, lawyer of the international projects group of the VEGAS LEX law firm

Within the meaning of Article 609 of the Civil Code of the Russian Federation, a simple written form is provided for all lease agreements (including lease of movable property) concluded for a period of more than one year, as well as for lease agreements to which a legal entity is a party. Real estate lease agreements concluded for a period of at least one year are subject to state registration.

The termination agreement also requires the parties to determine the fate of the down payments already made by the tenant.

In addition to mutual agreement, the lease can be terminated by a court order. The lessor’s right to such an operation is enshrined in the Civil Code of the Russian Federation, Article No. 619 “Early termination of the contract at the request of the lessor.” It states that the landlord has the right to apply to the court for the following reasons if the tenant:

• significantly or repeatedly violates the terms of the transaction for the use of leased assets;
• significantly deteriorates leased buildings, structures, premises and other material assets;
• does not pay rent more than twice in a row within the period established by the document;
• obliged, but does not carry out major repairs.

There may be other reasons, which are discussed in Article No. 450 of the Civil Code of the Russian Federation “Grounds for amendment and termination of the contract.”

The landlord, before going to court, must contact the tenant in writing and demand that he fulfill his obligations in accordance with the accepted conditions.

Svetlana Zherdina

, lawyer of the international projects group of the VEGAS LEX law firm

It should be noted that if the lease agreement does not specify a period for sending notice of unilateral termination of the agreement, either party has the right to withdraw from the agreement by notifying the other party one month in advance (for the lease of movable property) or three months in advance (for the lease of immovable property). property).

The Civil Code of the Russian Federation also provides that the tenant may terminate the lease if the landlord:

• does not transfer property or interferes with its use;
• did not specify all the shortcomings of rental real estate and material assets that prevent the full use of this property;
• obliged, but does not carry out major repairs.

The tenant also has the right to terminate the lease through the court if the transferred real estate and other material assets have become unusable for reasons beyond the control of the landlord.

Agreement on termination of employment contract

Article 78 of the Labor Code of the Russian Federation, dedicated to the termination of an employment contract by agreement of the parties, determines that in this case, termination can be carried out at a time when it is convenient. The initiator of such a decision can be a hired employee or an employer.

The norms of the Labor Code of the Russian Federation establish that an employment contract is drawn up in writing, one copy for each party. The termination agreement is also executed in two copies of equal legal force, in writing. The essence of Article No. 78 of the Civil Code of the Russian Federation is that the parties agree, and do not notify, about the termination of their obligations within the framework of labor relations and dismissal; the differences between these methods are as follows:

• there is no notice period, the employment contract can be terminated at the convenience of the parties;
• the trade union does not influence the nuances and features of the agreement between the parties;
• no one is obliged to notify of the reasons that led to the decision on such an agreement, and to record these reasons anywhere, in any documents;
• the agreement can be used even if the probationary period has not expired, or upon termination of cooperation under an employment contract concluded for a certain period;
• Any terms of the agreement regarding terms, monetary and other compensation and conditions of dismissal are possible if they suit the contracting parties.

This termination agreement may be cancelled. This also requires mutual consent of the parties.

With such dismissal, the employee has the opportunity to apply for a much larger unemployment benefit than if dismissed at his own request. Such an agreement is also beneficial for the employer. If the employee changes his mind about resigning, or if the dismissed person decides to be reinstated through an appeal to the court and a corresponding court decision or with the help of the State Labor Inspectorate, he will be denied.

Such an agreement is developed individually for employees; each employee receives their own document form. This is true even when an organization terminates employment relationships with several employees at once and, during negotiations with them, uniform conditions and principles of dismissal are developed.

Svetlana Zherdina,

lawyer of the international projects group of the law firm VEGAS LEX

There is judicial practice according to which an employee dismissed by agreement of the parties can be reinstated at work through the court. We are talking about situations related to the reinstatement of pregnant women to work. Thus, the Supreme Court of the Russian Federation, in ruling No. 18-KG16-45 dated June 20, 2021, declared unlawful the dismissal of an employee who was pregnant at the time of termination of the contract by agreement of the parties, but found out about this after the dismissal.

In addition, employees sometimes manage to prove in court that the conclusion of an agreement to terminate an employment contract is due to unlawful actions of the employer, pressure on the employee (see, for example, the Appeal ruling of the Supreme Court of the Republic of Mordovia dated April 16, 2013 in case No. 33-783/2013 , Appeal ruling of the Khabarovsk Regional Court dated April 22, 2015 in case No. 33-2423/2015).

It should be noted that dismissal by agreement of the parties should not cover up dismissal in connection with the liquidation of the enterprise in order to avoid payment of compensation. Such dismissal may be considered illegal.

The document must indicate and specify: the basis and period of dismissal, the amount of severance pay accrued. It is recommended to indicate that the amount of this benefit is final and is not subject to revision or appeal. It is also worth supplementing the text with the phrase that the parties do not have unfulfilled obligations or claims. The agreement is drawn up in writing, in two copies of equal force and endorsed by the personal signature of the head of the company.

The personnel service of the enterprise must draw up an order to terminate the employment relationship. This is the standard form of orders No. T-8 and T-8a, which were adopted and approved by the State Statistics Committee of Russia. The basis for dismissal is the mentioned agreement, the wording is “termination of the employment contract by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation).”

In addition to the order, the personnel service employee writes in the employee’s work book “The employment contract is terminated by agreement of the parties, paragraph 1 of part 1 of Article 77 of the Labor Code of the Russian Federation.” The employee writes the word “Acquainted” and puts his signature under this entry. After which the book is issued to the already dismissed employee. After this, the former employee signs in the work record book and in his personal file

Notice of termination of contract

To comply with formalities, a party planning to terminate a previously concluded contract must send notice of this to the other party in advance. This is a necessary procedure. Without such notification, it will be considered that the fulfillment of obligations assumed under the contract has been stopped without sufficient legal grounds. If this is not provided for in the concluded contract, then the other party to the transaction has the right to seek protection in court and demand recovery of damages.

Svetlana Zherdina,

lawyer of the international projects group of the law firm VEGAS LEX

It is necessary to send a notice of termination of the contract in order to comply with the pre-trial procedure for resolving disputes. When subsequently applying to court to terminate the contract, the plaintiff will need to provide evidence confirming the adoption of measures to resolve the dispute with the defendant (see paragraph 60 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of July 1, 1996).

The text of the notification must contain the following information:

• information about the sender and recipient of the letter;
• name of the document being terminated, parties, reasons and legal grounds for termination;
• additions and clarifications, indicating the date of termination, as well as the period within which it is necessary to respond to the notification received;
• additional investments and documents required for termination;
• details, signature, date.

According to the rules of business etiquette, a notice of termination of a contract is drawn up on the enterprise’s corporate letterhead, endorsed by the head of the company or another person with the right to sign, and registered in the journal of outgoing documents. Next, it is handed over to the recipient in person, requiring the signature “first copy received” on the second copy of the notification, or sent by registered mail.

The recipient of the notification must respond to the letter no later than the time specified in the agreement or in the notification. When the deadline is not established, the Civil Code of the Russian Federation allocates 30 days for this from the date of receipt of the document. If the recipient does not respond, the sender has the right to apply to the judicial authorities to terminate the contract.

Svetlana Zherdina

, lawyer of the international projects group of the VEGAS LEX law firm

The article describes the procedure for sending a notice of termination of a contract if the contract or law does not provide for the right to unilateral termination. If the law or contract provides for the possibility of unilateral refusal of the contract, such a contract is considered terminated from the moment when notice of termination is delivered or is considered delivered, unless otherwise provided by law or contract.

When the supplier terminates the contract unilaterally

According to contract law, the procedure for unilateral refusal to fulfill a contract is possible for the customer and the supplier. If the contract contains a provision regarding the customer’s right to refuse performance unilaterally, then this automatically allows the counterparty to terminate the contract. This is indicated in Part 19 of Art. 95 44-FZ. The instructions on how to terminate a government contract without consequences for the supplier and on his initiative are similar to the procedure established by the Law on the Contract System for the customer.

From July 1, 2022, Part 20.1 of Art. 95 44-FZ, which prescribes a new step-by-step procedure for terminating a contract at the initiative of the supplier.

1 step. Formation, signing and placement in the Unified Information System of a decision on unilateral refusal to fulfill the contract.

Step 2. Automatically send it to the customer no later than an hour from the moment it is placed in the UIS. The date of receipt is the day of placement of such a decision in the Unified Information System in accordance with the time zone in which the customer is located. Receipt is recognized as proper notification to the customer of a unilateral refusal to fulfill the contract.

Step 3. Effective 10 days after due notice.

Step 4 Cancellation of the decision if the customer eliminates the violations within 10 days.

And from 01/01/2022 to 07/01/2022, special rules have been established for the termination process at the initiative of the supplier. During this period, the decision is transferred to the person who has the right to act on behalf of the customer, personally against signature, or sent to the customer by registered mail with return receipt requested to the customer’s address indicated in the government contract. The date of such proper notification is the date:

1. In the receipt of receipt of the decision, if it is transferred to the person who has the right to act on behalf of the customer, personally against signature.
2. Receiving confirmation that a registered letter has been delivered to the customer or information that the customer is not at the address specified in the government contract, information about the return of such a letter after the expiration of the storage period, if the decision is sent by registered mail.

How to terminate

By mutual agreement

The parties have the right to agree and terminate the contract by agreement of the parties, this is done before the expiration of its term. The basis is mutual agreement (clause 1 of Article 450 of the Civil Code). Please note that:

• to terminate an agreement concluded in favor of a third party, it is necessary to obtain his consent, unless otherwise provided by law, other legal acts or by himself (clause 2 of Article 430);
• in a multilateral transaction, the consent of the majority of the parties is sufficient if this is allowed by the business contract and is not prohibited by law (Clause 1 of Article 450 of the Civil Code of the Russian Federation).

Out of court unilaterally

Such termination is carried out on the grounds provided for:

• law or other legal act;
• agreement (its violation by the counterparty, the occurrence of specified circumstances).

IMPORTANT!

If only one of the parties conducts business activities, then unilateral termination of the contract in the Civil Code of the Russian Federation is permitted only to its counterparty (clause 2 of Article 310 of the Civil Code).

Through the court

The Civil Code determines the procedure for terminating a contract in court and prescribes the grounds for this:

• significant violation of the terms by the other party (clause 2 of Article 450 of the Civil Code). The violation is recognized as material by law or agreement. To terminate, you will have to prove that it was completed, or justify its significance, if it was not named in the law or agreement as the basis for termination;
• other violation provided for by law or contract (clause 2 of article 450 of the Civil Code of the Russian Federation). Example - violation of the terms of the lease provided for in paragraph 3 of Art. 611 and art. 620 GK;
• the occurrence of other circumstances provided for by law or contract that are not related to the violation of the latter (Clause 2 of Article 450 of the Civil Code of the Russian Federation). For example, the prescribed basis is a unilateral change in price by the counterparty;
• a significant change in circumstances (clause 1 of Article 451 of the Civil Code), which is very difficult to prove.

Explanations on the topic

About the author of this article

Dmitry Sidaev Higher and specialized education in procurement: KhSUEP, diploma with honors in the specialty “Jurisprudence” and GAPM named after. N.P. Pastukhova, diploma with honors in the program “Procurement Management”. Author and ideological inspirer of the projects “GoodWin Project: Tenders made simple” and “Antidote 44-FZ: a cure for headaches in procurement.” Trains in procurement under 44-FZ, advises suppliers and customers, works as a guest manager of the tender department. Invited expert in many projects on public procurement.

Other publications by the author

• 2021.10.13News and changesFeatures of changes in prices for construction government contracts will be extended to geological exploration purchases
• 2021.10.06EISInstructions for unilateral refusal to execute a government contract: as amended in 2022
• 2021.09.30 Procurement control Is it possible to change the essential terms of a government contract: changes from 2022
• 2021.09.29223-FZInstructions for canceling purchases under 44-FZ or 223-FZ: what will change in 2022

How to write a statement (notification)

Here are brief instructions on how to write an application for termination of an agreement:

• determine the legal position: customer or performer, whether you are a consumer or not;
• prepare the letterhead of the organization or individual entrepreneur, if required;
• indicate the details of the counterparty and your details;
• indicate the situation: when and what type of agreement was concluded;
• indicate your will to terminate the transaction, for example, in the following form: “I ask you to terminate the contract due to the unnecessary provision of services”; outline the possible consequences for the parties;
• put the date and signature.

Sample

There is no unified form; the presented sample contains all the necessary details.

There are no special rules and requirements for how to write a contract for the refusal of additional services by hand; a handwritten application contains the same details and information as a printed one.

What to do next

Subsequent actions of the parties depend on the terms of cooperation and the nature of their relationship. The ideal option is to enter into a termination agreement. But it is not always required: the text of the initial agreement often stipulates that the moment the counterparty receives a notice of termination, the relationship is terminated without any agreement.

In some cases, after sending and receiving a written request - an application to terminate the contract - the parties need to fulfill final obligations to each other, for example, to reimburse incurred expenses or losses. The procedure for carrying out these actions is either described in the original document or agreed upon additionally.

If the parties have no obligations to each other, and the termination of the relationship occurs when the other party receives a statement of refusal of services, the relationship is terminated without any additional actions.

Results

Drawing up a notice of termination by the employer is a necessity due to the norms of the Labor Code of the Russian Federation. If the company does not draw up this document on time, the employee will have the right to continue working in the company, and the initially fixed-term contract will become indefinite.

For more information about other documents used by Russian employers in the process of building labor relations with hired employees, read the articles:

• “Unified form No. TD-1 - employment contract”;
• .

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