Experts and public assistants of the Commissioner for the Protection of the Rights of Entrepreneurs in the Moscow Region Vladimir Golovnev share useful information on current topics with the business community. 

The Public Assistant to the Commissioner for Public Procurement  Sergey Makoveev prepared another instruction, in which he spoke about the cases and procedure for sending a protocol of disagreement to the contract under the Federal Law "On the contract system in the field of procurement of goods, works, services for state and Municipal needs" dated 04.05.2013 No. 44-FL.

Sergey Makoveev noted that ignorance of the nuances in the work on 44-FL can lead to extremely negative consequences. For example, such as the inclusion of information about the winner of the purchase in the register of unscrupulous suppliers.

After determining the winner, the Customer places it in a single information system https://zakupki.gov.ru / and on the electronic platform, a protocol summarizing the results of the procurement procedure, a draft contract.  The text must fully comply with the draft contract published as part of the procurement documentation and contain information about the winner. The contract price must contain the winner's price offer contained in the application or submitted during the procedure.

In the absence of disagreement regarding the terms of the contract, the winner of the electronic procedure signs the contract and a document confirming the provision of security for the performance of the contract with an electronic signature.

Further, Sergey Makoveev named five mandatory steps for concluding a contract in the presence of disagreements:

Step 1. After receiving the draft contract for signing, carefully examine the document, identify errors and inconsistencies.

Step 2. Draw up a protocol of disagreement.

Step 3. Sign the protocol of disagreement with an enhanced electronic signature of the person authorized to sign the contract and place it on the electronic platform instead of the signed contract.

There is no need to send the signed and scanned document to the customer.

The Federal Law No. 44 regulates the deadlines that the winner of the electronic procedure should adhere to when posting the protocol of disagreement.

The protocol can be sent only once and no later than five working days from the moment when the customer posted the draft contract on the site (Part 3 of Article 51 of Federal Law №44).

This deadline should not be missed, otherwise the customer will recognize the winner as having evaded the conclusion of the contract and he will fall into the register of unscrupulous suppliers (paragraph 1, part 6 of Article 51, part 2 of Article 104 of Law No. 44-FZ).

Step 4. The customer must review the protocol of disagreement, after which:

• If he agrees with the comments, he will finalize the draft contract and send it back to the winner.

Please note: the draft contract is still not signed by the customer, in any case, the participant must put his signature first in public procurement.

• In case of disagreement with the comments, the customer does not amend the draft contract, but will re-post it in the EIS and on the electronic platform, indicating in a separate document the reasons for refusing to take into account, in whole or in part, the comments of the winner of the electronic procedure contained in the protocol of disagreement.

The customer performs these actions no later than two working days following the day of placement by the procurement participant with whom the contract is concluded, of this information and documents (Part 4 of Article 51 44-FL).

Step 5. Sign the newly received draft contract from the customer with the attachment of documents and (or) information confirming the provision of contract enforcement no later than one business day following the date of placement of information and documents by the customer.

If the changes have not been made by the customer, it is possible to file a complaint with the Federal Antimonopoly Service, but this can be done no later than the date of conclusion of the contract (Part 6 of Article 105 44-FL). After the expiration of the specified period, the actions of the customer can only be appealed in court.