Both for reasons of common sense and in accordance with the provisions of the legislative acts currently in force in the Russian Federation, the purchased product or service should be covered by a warranty period - the period of time during which, according to the manufacturer, the quality of the object of the sales contract will be maintained.
In situations where the functionality of an item is lost before the expiration of this period, the consumer (user) has the right to present a written demand to the seller for the return of money spent, exchange of goods or free repairs.
How is GO prescribed?
Customers specify warranty obligations and the supplier’s liability for violation of their fulfillment in each contract.
The rules for establishing and applying them are prescribed in civil legislation. The Civil Code regulates the guarantee for the quality of products sold (Article 470 of the Civil Code of the Russian Federation), for work performed (Article 722 of the Civil Code of the Russian Federation) and for construction work (Article 755 of the Civil Code of the Russian Federation). The warranty period under 44-FZ depends on the nature of the products supplied, work performed or services provided. The supplier provides a warranty for a period not less than that of the manufacturer.
If the technical documents for the supply of machinery and equipment contain warranty requirements, then the customer is obliged to specify in the procurement documentation what the warranty obligations are under 44-FZ: duration of obligations, volume of quality, requirements for service, maintenance costs, installation and commissioning equipment for the entire warranty period. The customer establishes in the documentation a strict requirement for such a period (for example, 5 years) in contract work on real estate on the basis of Art. 737 Civil Code.
ConsultantPlus experts analyzed what warranty obligations the contractor bears under a civil contract. Use these instructions for free.
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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.
Reasons for dumping
One of the main reasons for dumping is, of course, the purpose of obtaining a contract by the customer.
Some people win zero-price contracts just to execute the contract and gain connections with a specific customer.
There is also such a purpose of dumping as the collapse of the procurement procedure, extorting funds from the winner of the procurement procedure or the customer.
As an example: several companies come out, bargain and bring the contract price to zero or to a plus, and the customer is forced to enter into an agreement with the corresponding counterparty, but, at the same time, upon fulfillment, they begin to grossly violate the terms of the contract, or the terms of the contract (as a rule, this is fly-by-night companies) and go into non-fulfillment. Although unilateral refusal of the contract is now possible, in some cases representatives of potential winners came out, even at the stage of consideration of applications, after the auction and demanded that the customers come to an agreement, or from the remaining potential winners of the purchase. After which situations arose that were subsequently appealed to the FAS.
This example was given because such situations still arise in practice.
It is worth noting that during dumping there is certainly a reduction within the framework of 44-FZ, given that Form 2 for construction work has now been abolished, which leads to a large number of companies entering the auction that can win back even with a large reduction.
Dumping violates the rules of fair competition, but at the legislative level it is established that any participant can take part in the procurement procedure and the reason for deviation is within the framework of 44-FZ and 223-FZ and the requirements that customers establish in their procurement regulations.
Guarantees in procurement for SMP and SONKO
From 01/01/2021, orders for SMP and SONKO are subject to general rules for establishing guarantee obligations in connection with the termination of the grace period until 12/31/2020 under Part 64 of Art. 112 44-FZ: the customer requires the provision of certification, if necessary.
Such suppliers are exempt from providing guarantee obligations under 44-FZ for SMP from 04/01/2020 if they provided information about three contracts without penalties, closed 3 years before filing an application for participation in an amount not less than the initial (maximum) contract price (Part. 8.1 Article 96 44-FZ). This rule applies if the customer has established a security requirement in the tender documentation. Accordingly, the amount of warranty obligations 44-FZ with the latest amendments in 2021 for SMP, if there are advantages in procurement, may be 0 rubles.
How to establish a product warranty
All products purchased and supplied to the customer must comply with the conditions established by the contract. Goods must meet such conditions for a specific time period (Article 470 of the Civil Code of the Russian Federation). This period of time determines the warranty for the product.
If you choose a supplier of new machinery and equipment, then include in the documentation the requirements for the quality guarantee of goods under 44-FZ from the manufacturer or supplier and its validity period. Documents are transferred and filled out along with the goods. Obligations must apply both to the product itself and to all its components.
Instructions on how to specify the warranty period in a supply agreement:
- Set the required deadline.
- Indicate that the validity period begins from the moment the goods are delivered to the government customer.
Please note that the validity period is interrupted for a period when the customer, for one reason or another, is unable to use the product, which must be proven. The supplier's liability will arise if the defects arose before the acceptance of the goods by the government customer or for reasons that occurred before the date of acceptance (clause 5 of Article 477 of the Civil Code of the Russian Federation).
Here is an example of how to specify the requirements for a product manufacturer’s warranty under 44-FZ in tender documentation:
How long does it take for the seller to carry out warranty repairs?
The duration of repairs under warranty is determined as follows - clause 1 of Art. 20 No. 2300-1 Law of the Russian Federation:
- Immediately (as soon as possible) - if the parties have not agreed in writing on the deadline for eliminating defects.
- Within the period stipulated by the parties, but not more than 45 days - if the period is approved by you in writing.
This rule applies to the entire category of goods.
Important! If the repair period was violated/you repeatedly contacted the service center to repair the product (in total more than 30 days in each warranty year), feel free to submit a claim again and demand a refund.
What can you demand from the seller during the repair period under warranty?
During the period of warranty repair of a durable product, you can demand that the seller provide you with a similar product for free use within 3 days. In this case, the retail outlet is obliged to deliver it to you at its own expense.
However, there are exceptions to this rule. RF PP No. 2463 approved the List of durable goods to which the above requirement does not apply:
- Auto-moto vehicles/trailers and numbered units for them. An exception is products intended for the disabled/recreational boats and watercraft.
- Furniture.
- Electrical appliances.
- Electric/gas/hybrid household appliances used for heating/cooking.
- Civilian weapons. Jewelry and other products made of precious metals/precious stones.
How to establish a guarantee for work
The quality of the work performed by the contractor must fully comply with the conditions established by the contract during the warranty period under the contract (Article 721 of the Civil Code of the Russian Federation). The contractor's liability occurs beyond the period specified in the contract, but within a 2-year period from the date of signing the acceptance certificate for the work performed, if the customer proves that the defects arose before the transfer of work (clause 4 of Article 724 of the Civil Code of the Russian Federation).
Here is one example of how to include warranty obligations under 44-FZ for work performed in a contract:
How to prescribe a service order
This concept is not defined in 44-FZ, but on the basis of Part 4 of Art. 33 44-FZ, customers establish a service period for GWS and the scope of provision of measures to ensure the quality of their service. If machinery and equipment are purchased, the customer is obliged to establish such requirements for warranty service.
If defects in goods or shortcomings in works and services were not specified by the contractor, and the customer discovered them during the warranty period, then the buyer has the right to demand that the supplier correct the violations free of charge (clause 1 of Article 475, clause 2 of Article 477 of the Civil Code of the Russian Federation).
Such service is specified in the contract along with the warranty period. In the contractual terms, the obligation is understood as the supplier’s performance of work to eliminate shortcomings and defects identified after acceptance of the GWS purchased by the customer, but during the warranty period. This includes technical and other maintenance, technical inspection, replacement of parts, etc. (letter of the Federal Tax Service No. 20-12/092926 dated 10/03/2008).
What is meant by warranty period
The warranty period is understood as the period during which, if a defect is identified in the purchased product, you can make demands regarding the quality of the product to the manufacturer (performer), seller (authorized organization/individual entrepreneur, importer), and the latter must satisfy them - clause 6 of Art. 5 No. 2300-1 Law of the Russian Federation.
As a rule, such a period is established for durable non-food products. For example, for household appliances, vehicles, clothing, etc.
The warranty period can be set to:
- Main product.
- Its components.
- Components of the main product.
This period may be calculated:
- Time parameters - days/months/years.
- Warranty period (depending on the period of use and/or intensity of operation of the product) - for example, a 3-year warranty or 100,000 km of mileage (for vehicles)/number of operational repetitions, etc.
In practice, the first guarantee option is most often used. In this case, the duration of the warranty period can be any; the law does not limit it.
In addition to the warranty period, there are also:
- The warranty period for a product/product is the maximum possible operating time of the product.
- The shelf life of products/products that tend to lose the necessary qualities during storage is the time interval during which the manufacturer guarantees the safety of the product, the preservation of its consumer properties and the unchanged performance characteristics.
- The shelf life of goods is the time period after which the product is considered unfit for consumption.
- Service life is the time interval during which the manufacturer provides the buyer with the opportunity to use the item for its intended purpose and is responsible for any significant deficiencies found.
See also: Car warranty by law in 2021 - what it includes and what to do if consumer rights are violated
What nuances should you know about the warranty?
When returning a product during the warranty period, please be aware of the following:
- If the product was under warranty repair, the warranty period is extended for such a period - clause 3 of Art. 20 No. 2300-1 Law of the Russian Federation.
- When replacing a faulty product with a new one, the period begins again - clause 2 of Art. 21 No. 2300-1 Law of the Russian Federation.
- Equal warranty periods are established for the main product and its components, and a uniform procedure for calculating them is applied, unless otherwise provided by the contract - clause 3 of Art. 19 No. 2300-1 Law of the Russian Federation.
- When a contract establishes a warranty of shorter duration for components and components of a product than for the main product, claims can be made during the period of the main product, unless otherwise provided by the contract. If the duration is longer than for the main product, you should be guided by the longer one.
- Replacement of goods under warranty must be made by the seller within 7 days from the date of presentation of the specified requirement. If product quality control is required, within 20 days. If the seller does not have a suitable replacement, the period may be extended to 30 days - Art. 21 No. 2300-1 Law of the Russian Federation.
Who sets the warranty period?
Such a period may be established - Art. 5 No. 2300-1 Law of the Russian Federation:
- Manufacturer.
- Seller.
The retail outlet does not have the right to reduce the warranty period established by the manufacturer, but can only extend it.
If the manufacturer does not set such a period or the seller decides to increase it in addition to the manufacturer’s warranty (I’ll talk about this later), the retail outlet issues its own obligation. However, if the seller withdraws the manufacturer’s warranty card and replaces it with his own document, this is illegal.
Let me give you an example. The manufacturer has a 3-year warranty on the refrigerator. The seller gives the buyer his warranty card for a period of 1 year (instead of the manufacturer’s document) and invites him to buy an additional warranty for another 2 years. Such actions of the seller are nothing more than deceiving the consumer and providing false information about the product.
Where can the warranty period be specified?
You can find out information about the warranty at:
- Warranty card.
- Agreement.
- Service/warranty book.
- Technical documentation for the product.
How to determine the amount of security
Providing warranty obligations under 44-FZ is money or a bank guarantee that is provided to the customer for the period of service. In Part 6 of Art. 96 of the Law on the Contract System states that the amount of guarantee obligations under 44-FZ (OGO) does not exceed 10 percent of the initial (maximum) contract price (NMCP). The state customer himself determines the procedure and terms for providing security in the contract, even when he uses standard forms that do not contain such a provision. This is enshrined in paragraph 1 of Part 13 of Art. 34 44-FZ.
Features of ensuring warranty obligations
It happens that security for warranty obligations is established even when security for the performance of the contract is not established. This, for example, could be the purchase of equipment by requesting quotes. It turns out that the equipment falls under the mandatory condition of installing warranty obligations, but the customer may not provide security for the fulfillment of the contract.
Small businesses and socially-oriented non-profit organizations do not have any advantages when making guarantee obligations; for them the conditions are the same as for other participants.
Carefully study the procurement tender documentation to take into account all customer requirements. If you have any questions, you can always contact our company for expert advice by phone or by writing to us by email.
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How to prescribe the procedure and terms of provision
When determining the procedure and period for providing security for the fulfillment of warranty obligations under 44-FZ, please note that according to Part 7.1 of Art. 94 44-FZ, you can sign an acceptance certificate when the supplier has provided warranty obligations. In Part 3 of Art. 96 44-FZ stipulates that for this, the supplier transfers a bank guarantee for warranty obligations under the 44-FZ contract or sends money to the customer’s account. As for the period, one month is added to the service period, then the minimum period for “freezing” the customer’s money or the validity of the bank’s guarantee will be obtained.
For example, if in government procurement of construction work for a capital construction project, the state customer prescribes a warranty period for the work performed under 44-FZ for 5 years under Art. 756 of the Civil Code, then the contractor will have to obtain a bank guarantee for 5 years + 1 month. or “freeze” money for this period in the customer’s personal account.
The customer requires security for obligations under the contract, even if the contract is not enforced. For example, in an electronic request for quotations for the supply of computer equipment. With this method of determining the supplier, establishing contract security is the customer’s right, not an obligation.
IMPORTANT!
Both government institutions and small businesses (SMB) provide a guarantee if they fail to provide at least 3 contracts completed without complaints, which in total constitute the NMCC. This is enshrined in parts 8 and 8.1. Art. 96 of the Law on the Contract System.
Will the warranty apply if the product was purchased abroad?
When purchasing a product from a foreign manufacturer abroad, Russian laws do not apply. Here a lot depends on the “policy” of the manufacturer. If the product is certified in Russia, you can apply for warranty to authorized service centers with which the manufacturer has an agreement. If not, you will be rejected.
However, you have the right to contact the manufacturer in accordance with the regulations of the state where the item was purchased. Also, if there is a representative office of such a foreign company in the Russian Federation, you can try contacting them. Perhaps they will help you resolve this issue.
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.
How to defend consumer rights when warranty repairs are refused
Decide on a method to protect the violated right.
If the retail outlet/manufacturer/service center unreasonably refused to service your product under warranty, prepare a complaint to Rospotrebnadzor.
Such an appeal must be considered by the supervisory authority within 30 days from the date of its receipt. Based on the results of its consideration, if the violation is confirmed, an order to eliminate it will be sent to the seller.
In addition, an independent examination is also recommended. If the result confirms a manufacturing defect, the store will reimburse you for the money you paid for the product.
If the out-of-court procedure does not produce results and the money is still not returned to you, file a claim in court. I described in more detail how to draw up a claim, in which court and in what way to file it in the article Sample statement of claim to the court for the return of funds in 2021.
