How to include warranty obligations in a government contract

Just a year ago, according to 44-FZ, customers were required to require suppliers to provide warranty obligations under the contract if the technical specifications specified warranty requirements (124-FZ). Now customers no longer have such an obligation; as of July 1, 2020, it has been replaced by a right. But there are still many unclear points on this topic.

Many suppliers and customers still do not understand the issue of ensuring warranty obligations. New changes to 44-FZ, adopted by 124-FZ of April 24, 2021, added fuel to the fire.

How to set out the terms of a guarantee in a government contract

Federal Law No. 44 FZ does not contain detailed instructions on how to specify warranty obligations in a contract. Taking into account the specifics of the agreement, it is necessary to separately consider the sample guarantee of the quality of the goods and the result of the work performed or services provided. When providing a guarantee from the counterparty to eliminate deficiencies in the execution of the contract, customers should rely on the provisions of the Civil Code of the Russian Federation. The warranty period under 44 Federal Laws for goods is regulated by Articles 469 – 471 of the Civil Code of the Russian Federation, and guarantees for the result of work performed are regulated by Article 722 of the Civil Code of the Russian Federation. And if we are talking about a construction contract - Article 755 of the Civil Code of the Russian Federation.

Return period for warranty measures under 44-FZ

44-FZ does not say anything about how the security for warranty obligations can be returned. And the return of OIC is discussed in detail in Part 27 of Article 34 of 44-FZ, so customers take advantage of this provision:

• within 1 month from the date of fulfillment of obligations;
• within 15 days if the purchase was carried out among SMP and SONPO.

We recommend that you carefully study the draft contract for return periods. If the customer has not indicated them, then use your right to send him a request for clarification of the provisions of the procurement documentation with a request to indicate this period.

Product delivery guarantee

A supply contract presupposes the seller’s obligation to provide the customer with the goods specified in the contract or technical specifications in the proper configuration and quality. The supplier assumes warranty obligations for the goods. He is obliged to ensure the opportunity to use it during the period specified in the government contract. As a rule, this is 1-2 years. The period depends on the type of product supplied and the standard period of its use. For complex technical equipment, such as cars or industrial equipment, the period will be longer.

The warranty begins to apply from the moment the product is delivered to the customer. It may be interrupted for a period when the customer could not use it due to the fault of the seller. If during use the customer discovers a defect and reports this to the supplier, the period is also suspended until the problem is resolved. The supplier's obligations extend to the product itself and all its components. But he is not responsible for defects and damage caused by the customer, for example due to improper use of the product.

The law does not establish strict wording that must be used by the customer in the text of the contract, but as an example, you can use the following sample of a supplier’s guarantee for a product:

Transportation costs for warranty repairs

By virtue of clause 7 of Art. 18 of the law on ZPP during warranty repairs, delivery of goods from the buyer to the seller and back is carried out at the expense of the seller, provided that the goods are large in size or if their weight is more than 5 kg. The conditions under which a product is considered large are not described in the law, so its weight is taken into account first.

If, based on the results of an inspection or examination of a failed product, the seller agrees to carry out warranty repairs, then all associated costs to ensure the possibility of this repair (examination cost, delivery, etc.) are borne by him. However, a situation is possible when the buyer sends an unusable product to the seller, observing the warranty period, but an inspection shows that the breakdown was caused by the buyer due to improper use. In this case, the buyer does not have the right to demand reimbursement of transportation costs; moreover, he must also reimburse the cost of the examination to the seller, and of course, he will not receive free repairs.

In the case of legal entities, in order to avoid disputes and litigation, one should not neglect a detailed statement of the warranty terms in the contract, stipulating the seller’s obligation to pay for the delivery of goods from the buyer upon the occurrence of a warranty case.

The composition of costs related to warranty repairs is not included in the regulations. However, from Art. 475 and art. 476 of the Civil Code of the Russian Federation it follows that the seller must pay all costs associated with eliminating defects in the goods, including transportation costs.

Guarantee for the result of the work performed

The state contract for the performance of work assumes that the customer will receive a result that will meet the quality requirements established in the agreement and technical specifications. The Civil Code of the Russian Federation allows for the establishment of obligations for the contractor to eliminate deficiencies in the work after their acceptance and the period of such obligations. Even if this period is not set, the customer still has the right to make claims regarding the quality of the work performed within two years.

If the warranty period is established, but is less than two years, the customer has the opportunity to file a claim for the quality of work outside the established period. But to do this, you will have to prove that the defect arose before the result of the work was transferred to the customer. The warranty begins to apply from the moment of acceptance of the work results and is subject to the rules established for the warranty period for goods. Here is an example of how to write a guarantee in a contract:

Contracts concluded before July 1, 2021

In short, the requirements established in the contract cannot be changed, canceled or violated. This rule also applies to those contracts that were concluded before July 1, 2021, when the obligation was replaced by a right.

Turning to paragraph 4 of Art. 5 124-FZ, we can conclude that even if the contract was drawn up before the changes came into force in 2021, the customer still cannot change it. For purchases that were announced between April 24, 2021 and July 1, 2021, he can make changes if the contract with the supplier has not yet been signed.

Service guarantee

Unlike contract contracts, service contracts oblige the contractor to perform certain actions within the time specified in the agreement. The Civil Code does not establish special rules for warranty obligations under service contracts. Rules similar to works contracts apply. But when establishing a guarantee, it is necessary to take into account the specifics of the service. A guarantee cannot be established for intangible services. For example, for oral consultations or translation of texts.

Who is responsible for the warranty?

Warranties are regulated by the Consumer Protection Law, which was last amended in 2014.

In accordance with this regulatory act, providing a guarantee is the responsibility of the seller, manufacturer or company responsible for importing products into the country.

Article 5 of the law outlines the rights and obligations of persons who sell or produce goods that have a certain service life and are covered by warranty service.

Throughout this time, the seller is responsible to the buyer for the ability to use the goods in accordance with its purpose and is responsible for all defects (Article 19, 29).

In accordance with Article 6, the manufacturer is obliged to provide consumers with the opportunity to repair the purchased product, as well as perform maintenance (ensure the operation of service centers).

This includes the production and supply of necessary equipment and spare parts to stores and service centers.

Even if a product has been discontinued, its spare parts must be kept in the service center until the service life of already sold products expires or for ten years if the expiration date has not been determined.

Warranty obligations are fulfilled in relation to products purchased in Russia.

To receive service under a warranty card, the consumer must present the document at the place of purchase of the product or at a service center.

Conditions for warranty service

In addition to the supplier’s obligation to provide warranty service, the government contract must also specify the procedure by which this service will be provided. The requirements are not established by law, therefore they are the result of an agreement between the parties. You can stipulate:

• the procedure and period for the customer to notify the supplier, contractor, performer of identified deficiencies in the product, work or service;
• the procedure for recording an identified deficiency, for example, the parties may agree on the need to draw up a joint report on the identified deficiencies or on the mandatory conduct of an independent examination of the causes of the deficiency;
• on whose territory the repairs are being carried out;
• repair period;
• the seller's obligation to provide a similar product during the repair process.

How to accept collateral

Accept before you sign the acceptance documents. The Law on the Contract System did not stipulate how to accept documents confirming the manufacturer’s and supplier’s warranty for goods 44-FZ, if the goods are delivered in parts (for example, the supplier ships computer equipment in batches).

According to Part 7.1 of Art. 94 44-FZ, the supplier does not provide warranty service when it closes a stage. But the deadline for the batch runs immediately after shipment and execution of acceptance documents. If you do not require guaranteed service for some of the products that the customer already has, then the fulfillment of these obligations is not guaranteed. When accepting in parts, require that obligations be provided for the volume of products already shipped.

IMPORTANT!

The total collateral provided should not exceed 10 percent of the NMCC.

Ensuring contract and warranty obligations

44 of the Federal Law does not oblige suppliers to ensure obligations for repair and maintenance of the result of the contract. Only its execution is ensured. But as of July 1, 2019, changes to 44 Federal Laws come into force, under which warranty obligations will be provided. The following rules are planned:

• the form of security is chosen by the supplier;
• security is provided before the final acceptance of the results of the agreement; without this, acceptance is impossible;
• the amount of security is not more than 10% of the agreement amount;
• the security period exceeds the warranty period by at least one month.

Guarantee obligations will be secured either in cash or by a bank guarantee. If the contractor under the contract does not fulfill the requirements for guarantee service, the state customer will either recover the provided amount of money or apply to the bank that issued the bank guarantee for payment of the security amount.

In what cases is it necessary to provide guarantee measures?

From July 1, 2021, issuing a warranty requirement is the customer’s right, not his obligation. However, in some cases it must require the provision of security for the warranty obligations.

Important

: The requirement must be approved in the procurement notice, relevant documentation, draft contract or invitation to the supplier. If such a condition was not set, the customer subsequently cannot demand this security from the contractor. In this case, the document must specify the obligations provided by the supplier.

According to the law, the customer makes mandatory requirements if he purchases machinery or equipment. At the same time, it establishes the warranty period of the product, requirements for quality, volume and warranty service. If this is provided for in the technical documentation, then the requirements are also established for the installation and commissioning of this product.

In all other cases, the customer may not establish the above requirements.

Electronic document management is a mandatory attribute of any business, since sending some information to regulatory authorities must be exclusively in electronic form. "Astral.EDO" is an online service for organizing internal and external legally significant electronic document management.

Explanations on the topic

About the author of this article

Polina GoltsovaLawyer My initial specialty was lawyer, legal consultant.
For the first two years of practical activity, she worked in the general legal department of the organization, where she provided comprehensive legal support to the employer’s activities. However, since 2013, government procurement has become the main focus of my practical activity. I worked in the contract services of several large budgetary institutions at the federal and regional levels and a commercial organization whose activities are related to government procurement. She was involved in legal support of government procurement, contractual and claims work, represented the interests of employers in arbitration courts and the Federal Antimonopoly Service.

For the last three years I have been creating legal content, writing popular articles on current issues of law enforcement for several information portals.

Other publications by the author

• 2021.10.14 Reporting OKZ codes for procurement specialists
• 2021.10.13 Bank guarantees Examples of a bank guarantee to secure a contract under 44-FZ
• 2021.09.30Supplier documentsHow to confirm the experience of a procurement participant under 44-FZ
• 2021.09.27 Procurement control How universal prequalification takes place

When civil defense is required

Contract legislation explains in what cases the provision of warranty obligations is prescribed if the requirements for them are established by Art. 96 44-FZ and tender documentation. This is indicated in paragraph 1 of Part 13 of Art. 34 of the Federal Law on the Contract System. From July 1, 2020, customers have the right, but not the obligation, to demand the guarantee obligations of 44-FZ.

An example of a requirement to provide assurance from a draft government contract:

IMPORTANT!

From 01/01/2022, changes to 44-FZ will introduce independent guarantees, which participants will provide instead of bank guarantees (clause 28 of Article 5 of Law No. 360-FZ), and the register of bank guarantees will replace the register of independent guarantees.

From 01/01/2022, certifications will begin to be issued:

• banks according to the list approved by the government;
• State Development Corporation "VEB.RF";
• guarantee organizations from regions;
• Eurasian Development Bank.

Remember

1. Establishing a warranty period for products is the right of the manufacturer/seller, and not an obligation.
2. The guarantee can be legal or contractual. Also, the seller/manufacturer may provide an additional guarantee in respect of a defect in the product discovered after the end of the warranty period established by the manufacturer.
3. Warranty information may be indicated in the warranty card/service book/contract/technical documentation for the product.

Have you ever had to contact the seller for warranty? What did you choose - repair, replacement of goods or refund?

FAQ

What to do if warranty repairs are denied?

It happens that during the warranty period, any defects arise in the product, and at his own discretion, the client chooses repair as a way to restore his violated rights. Or rather, to be precise, the elimination of shortcomings free of charge, because This is how ZPP are characterized, actions aimed at eliminating defects that arose in a product during the warranty period.

In most cases, when consumers contact the ASC with a request for repair, the product is accepted for repair by the service, and the legality of the consumer’s demands for free troubleshooting is checked . As a rule, this comes down to checking that the consumer has a correctly completed original warranty card for the product provided and checking the serial, identification numbers, which are usually printed on the product on special stickers.

But there are cases when, instead of a repaired product, the consumer receives a refusal to satisfy his, as it seems to him, legal requirements , i.e. refusal to eliminate defects free of charge, with the following approximate wording: “removed from warranty/warranty cancelled/denied warranty service because the consumer violated the rules for operating the product - traces of liquid ingress were found in the device/traces of mechanical damage were found,” or with a similar wording.

The first thing you need to do is to request a work certificate or any other document drawn up by them, which will describe: what work was carried out by the SC, whether the malfunctions you claimed were confirmed or not confirmed, the reason for their occurrence, the consequences they entailed for the equipment and what This type of malfunction is acquired during the operation of the product by the consumer or introduced into the product before its transfer to the consumer.

If such a statement or any other similar document is not provided to you, and the refusal of warranty service is issued without explanation, then, according to Article 18, paragraph 6, it will not be proven that you, and therefore the service center, are the culprit of the malfunction, as an authorized organization, continues to be responsible for product defects.

Further, on the basis of Art. 18 clause 5, you can request an examination of the goods, and you have the right to be present during its conduct.

The results of the examination will be a valid basis (unless, of course, you are guilty of product failure) for filing a lawsuit for violation of your consumer rights.

Is warranty service possible if there is no receipt and an empty coupon?

If you discover a defect in the goods, you must submit a claim in accordance with clause 1 of Art. 18 of the Labor Code to the SELLER (even with a requirement to eliminate the defect free of charge - repair of the product - Article 20 of the Labor Code).

In accordance with clause 5, article 18 of the PZPP: the consumer’s absence of a cash or sales receipt or other document certifying the fact and conditions of purchase of the goods is not a basis for refusal to satisfy his requirements .

What products cannot be exchanged or returned?

There is the following list of non-food products of inadequate quality that cannot be returned or exchanged for a similar product of a different size, shape, dimension, style, or color:

(as amended by Resolutions of the Government of the Russian Federation dated October 20, 1998 N 1222, dated February 6, 2002 N 81)

• goods for the prevention and treatment of diseases at home (sanitary and hygiene items made of metal, rubber, textiles and other materials, medical instruments, instruments and equipment, oral hygiene products, spectacle lenses, child care items), medicines (including as amended by Decree of the Government of the Russian Federation of October 20, 1998 N 1222);
• Personal hygiene items (toothbrushes, combs, hairpins, hair curlers, wigs, hairpieces and other similar products) (clause 2 as amended by Decree of the Government of the Russian Federation of October 20, 1998 N 1222);
• perfumery and cosmetic products;
• textile goods (cotton, linen, silk, wool and synthetic fabrics, goods made from non-woven materials such as fabrics - ribbons, braid, lace and others); cable products (wires, cords, cables); construction and finishing materials (linoleum, film, carpets and others) and other goods sold by the meter (clause 4 as amended by the Decree of the Government of the Russian Federation of October 20, 1998 N 1222);
• sewing and knitted products (sewing and knitted linen products, hosiery products);
• products and materials in contact with food , made of polymer materials, including for one-time use (tableware and kitchenware, containers and packaging materials for storing and transporting food);
• household chemical goods , pesticides and agrochemicals (as amended by Decree of the Government of the Russian Federation of October 20, 1998 N 1222);
• household furniture (furniture sets and sets);
• products made of precious metals , with precious stones, made of precious metals with inserts of semi-precious and synthetic stones, cut precious stones;
• cars and motorbikes , trailers and numbered units for them; mobile means of small-scale mechanization of agricultural work; pleasure boats and other household watercraft;
• technically complex household goods for which warranty periods are established (household metal-cutting and woodworking machines; household electrical machines and appliances; household radio-electronic equipment; household computing and copying equipment; photographic and film equipment; telephones and fax equipment;
• electric musical instruments, electronic toys;
• household gas equipment and devices (as amended by Resolutions of the Government of the Russian Federation dated October 20, 1998 N 1222, dated February 6, 2002 N 81);
• civilian weapons , main parts of civilian and service firearms, cartridges for them (clause 12 introduced by Decree of the Government of the Russian Federation of October 20, 1998 N 1222);
• animals and plants (clause 13 introduced by Decree of the Government of the Russian Federation of October 20, 1998 N 1222);
• non-periodical publications (books, brochures, albums, cartographic and music publications, sheet art publications, calendars, booklets, publications reproduced on technical media) (clause 14 introduced by Decree of the Government of the Russian Federation of 02/06/2002 N 81).

Store guarantee

With a guarantee from the store, when returning a previously purchased product, you must make sure of the following:

- the product has not been used; — 14 days have not passed from the date of purchase; — the presentation is preserved; — the packaging of the goods is not damaged; — availability of all necessary documentation; — safety of seals and labels; — availability of a warranty card and a receipt.

Only if the product remains in good condition and within 14 days can you make any claims to the store and return the goods and receive your money.

If the product does not work, then its possible return or exchange is carried out only if there is a document confirming that the operating conditions are not violated.

We draw a conclusion. If a malfunction is detected after a year, six months, a month or even just three weeks in the operation of the product you purchased, diagnosis of the problem, repair and service are carried out at your own expense. The store's guarantee does not imply this.