When to sign
In Part 1 of Art. 95 44-ФЗ specifies a closed list of grounds for changing the mandatory conditions of a government contract. We have collected these conditions and grounds for preparing additional agreements in a table.
| Conditions | Rules for change |
| Price Period of execution Number of goods Scope of work (services) | Increase or decrease the amount within 10%. Prices (tariffs) for goods, works, and services that are regulated by law have changed. The budget funds previously communicated to the state customer, as the recipient, have decreased and the limits of budget obligations within the framework of clause 6 of Art. 161 of the Budget Code. Increase or decrease the price for medical reasons in government contracts with a foreign organization for the treatment of a Russian citizen abroad. The main thing is that such an opportunity is spelled out in the government contract. |
| Supplier or customer | Replace the supplier with its successor if a reorganization (transformation, merger or acquisition) has taken place. Change the customer if the rights have been transferred to another government customer. This is indicated in parts 5, 6 of Art. 95 44-FZ and Letter of the Ministry of Finance No. 24-03-08/71520 dated 10/31/2017. |
| Characteristics of the product (work, service). | Exchange a product (work, service) under a government contract for a product (work, service) with better characteristics. |
| Any conditions | If the government contract:
|
| Price, term and a number of other conditions | In government contracts that were concluded as a result of procurement for construction, reconstruction, major repairs, demolition of a capital construction project or for the preservation of cultural heritage sites. Change the deadline for the execution of such contracts if, through the fault of the contractor, he did not fulfill the contract on time or circumstances beyond the control of the parties arose due to which the contract was not fulfilled on time. Don't forget the design documentation. This is indicated in clause 9, part 1, art. 95 44-FZ. When a contract is not completed on time due to the fault of the contractor, change the deadline if the contractor:
Additional agreements to government construction contracts also change other essential conditions, unless this leads to an increase in the execution time of the government contract or its price by more than 30%. The main thing is that the government contract is concluded for a year or more, and the price is equal to or exceeds 100 million rubles, and during its execution, circumstances arise that do not depend on the parties, due to which the work cannot be completed. To sign an additional agreement, you will have to obtain a written justification, which is based on the decision of the authorized body:
This is indicated in clause 8, part 1, art. 95 44-FZ and clause 1(1) of Resolution No. 1186. |
Amendment of the contract by agreement of the parties
Amendment of the contract by agreement of the parties is provided for in Article 450 of the Civil Code. You can make changes in the following ways:
- change the wording of certain terms of the agreement;
- add new terms to the contract;
- exclude any condition from the contract;
- renew contract.
Formulation of changes
The generalized condition for amending the contract is formulated as follows: “The terms of this contract may be changed by mutual agreement of the parties.”
To prevent the counterparty from changing the contractual relationship without the knowledge of the other party, the agreement states: “All changes and additions to this agreement are considered valid if they are in writing and signed by authorized representatives of the parties.”
If the contract for some reason has become uninteresting or unprofitable for the parties, it can be terminated by mutual agreement. In the contract, this condition is formulated as follows: “The contract may be terminated early by mutual agreement of the parties.”
The contract must be amended or terminated in the same manner in which it was concluded. An agreement concluded in writing is also terminated or amended in writing.
If the contract has been notarized, the agreement to amend or terminate it must also be certified by a notary. If the agreement was subject to state registration (with the tax office, with the real estate registration department), all agreements on its termination or amendment must also be registered.
Changes or early termination of the contract are made depending on the terms of the contract:
- a separate document (usually an agreement to amend or terminate the contract);
- through an exchange of letters.
In the first case, the procedure for terminating or amending the contract can be formulated as follows: “This contract may be terminated or its terms may be changed by mutual agreement of the parties at any time. Amendments to the agreement will be considered valid only if they are in writing and signed by authorized representatives of the parties.”
expert opinion
I. Belokrylova, lawyer : “The parties have the right to demand the return of what was fulfilled under the obligation before the change or termination of the contract only if this is provided for by the agreement or established by law.”
Correspondence as an alternative
If a meeting between representatives of the parties related to the signing of a document on termination or amendment of the contract is difficult, this can be done during normal correspondence. The procedure is as follows: one party sends the other a letter notifying the termination of the contract or the desire to change it. At the same time, the letter indicates a deadline for a response.
If the answer is positive and given within the agreed period, the contract is considered modified or terminated from the date on which the letter of consent is received. If there is no response within the deadline or it is negative, the party interested in terminating or amending the contract has the right to file this demand in court.
How to make a change?
If one party intends to change the contract, it must send a notification letter to the other. The letter must indicate:
- which agreement is subject to change;
- reasons why the contract needs to be changed;
- what conditions are subject to change or addition;
- what conditions are excluded.
A sample notification letter is shown below.
document
| On the letterhead of Passiv LLC | General Director of Aktiv CJSC A.I. Vasiliev |
Dear Alexander Ivanovich!
1. Due to unforeseen financial difficulties that have arisen for our company, we inform you that we will not be able to fulfill our obligations under agreement No. 32 dated December 25, 2007 on time.
In order to avoid possible losses, we ask you to consider changing certain terms of the agreement, namely: subclause 3.2 of clause 3 and subclause 5.3 of clause 5. A new version of these conditions is attached to this agreement.
2. I propose to hold a meeting in the near future (at your discretion) to discuss our proposals and document the agreement to change the terms of the contract.
January 9, 2008
| Sincerely, General Director of Passiv LLC | Yakovlev M.P. /Yakovlev K.B./ |
The other party must review the letter and respond within the agreed time frame. A sample answer is provided below.
document
| On the letterhead of ZAO Aktiv | General Director of Passiv LLC Yakovlev K.B. |
Dear Konstantin Borisovich!
1. In response to your letter dated January 9, 2008 with a request to change certain terms of agreement No. 32 dated December 25, 2007, we inform you that our company does not object and agrees to consider your proposals.
2. I propose to hold a meeting and discuss possible changes to the agreement on January 25, 2008 at the office of our company at the address: Moscow, Volzhsky Boulevard, 12.
January 16, 2008
| Sincerely, General Director of JSC "Aktiv" | Vasiliev M.P. /Vasiliev A.I./ |
Agreement to amend the contract
The agreement to amend (and/or supplement) the contract should indicate:
- what contract is being changed (type, number, date of its conclusion);
- reasons for changing the contract;
- what conditions will be changed or supplemented;
- what conditions will be excluded.
You can also indicate that certain conditions do not apply from the moment the parties enter into an agreement to amend the contract. The agreement can provide for the procedure for fulfilling those conditions that have already come into force from the moment of its conclusion.
An agreement to amend (and/or supplement) a contract is drawn up in the form of an annex with reference to the contract, the terms of which are changed or supplemented. The agreement must be signed by authorized representatives of both parties.
The section was prepared using the Garant legal reference system
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When the sample is not signed
The sample additional agreement does not change:
- The country of origin of the goods, if the ban is prescribed in regulations within the framework of the national regime under Part 6 of Art. 14 44-FZ.
- Supplier, except for the assignment to a third party of the right to claim against the customer for the fulfillment of a monetary obligation (clause 17 of the review of judicial practice of the Presidium of the Supreme Court dated June 28, 2017).
- Item.
- Other conditions, if the conditions under Art. 95 44-FZ.
As a general rule, it is impossible to change the subject of a government contract, but some contracts are changed if there is a decision of the Government, regional authorities or local administration. For example, this applies to government contracts:
- for federal needs for a period of three years and at a price of 10 billion rubles, and for transactions for clinical trials of drugs - from 40 million rubles;
- for regional needs for a period of three years and at a price of 1 billion rubles;
- for the needs of a municipality with a deadline of one year and a price of 500 million rubles.
This is established in paragraphs 2, 3, 4 of Part 1 of Art. 95 44-FZ, para. 2 p. 1 art. 432 Civil Code, clause 1 of Resolution No. 1186.
How to compose correctly
Here are step-by-step instructions on how to prepare a sample additional agreement yourself:
Step 1. Take the names and details of the parties from the government contract.
Step 2. Write down the reasons for the changes, the changes themselves and the fact that the remaining provisions of the government contract remain unchanged.
Step 3. Make a sample in duplicate.
Step 4. Sign the additional agreement with authorized persons of the customer and supplier.
Send information about the additional agreement to the register of contracts in the EIS. Do this within five working days from the date of signing the additional agreement.
Additional agreement to the contract: contents
There is no clear standard model of this document in the legislation; it is drawn up in an arbitrary order. Ch. 27 of the Civil Code fully regulates all the necessary provisions of the contract. Based on Art. 702 of the Civil Code, the concepts of the parties – “Customer” and “Contractor” – are introduced into the agreement. The customer can be either an individual or a legal entity. A contractor is always a legal entity hired on a reimbursable basis to perform certain work.
The additional agreement to the contract must indicate the following circumstances:
- Changed and agreed upon by both parties deadlines for completing the work.
- Changed estimated cost of work performed.
- A revised list of works specified in the main contract or a change in their scope.
ATTENTION: when a change in the cost of work performed is mentioned in an additional agreement, a new estimate, different from that attached to the main contract, must be drawn up. This estimate is an integral part of the agreement.
Responsibility
In parts 4, 5 art. 7.32 of the Code of Administrative Offenses stipulates liability for incorrect work with an additional agreement. If the terms of a government contract have been changed by an additional agreement, when this cannot be done by law, the official will be fined 20,000 rubles, and the legal entity - 200,000 rubles.
If the same violation also resulted in additional expenditure of budgetary funds or a reduction in the procurement object, then a fine equal to twice the amount of additional funds spent or the price of the reduced volume under the contract is threatened.
