How to refuse a won tender without consequences

What are the grounds for disagreement?

In Part 1 of Art. 421 of the Civil Code of the Russian Federation indicates whether it is possible to refuse to conclude an agreement - yes, it is possible: the parties are free in their legal agreements. If the organization is not satisfied with the conditions offered by a potential contractor, its representative does not agree and does not sign the contract.

The company has the opportunity not to respond to the supplier’s proposal, that is, not to accept the offer. In this case, it is not even necessary to give reasons for refusing to conclude the contract: if the offer is not suitable, the recipient simply ignores it.

But there are also exceptions. Here are the cases when the customer does not have the right to unilaterally refuse the transaction:

• with a public agreement (clause 3 of Article 426 of the Civil Code of the Russian Federation);
• based on the results of trading procedures (Part 1 of Article 447 of the Civil Code of the Russian Federation);
• when resolving disagreements regarding the terms of a specific supply contract (Part 2 of Article 507 of the Civil Code of the Russian Federation);
• in case of preliminary agreement (Article 429 of the Civil Code of the Russian Federation);
• when transferring an irrevocable offer (Article 429.2 of the Civil Code of the Russian Federation).

If the customer unilaterally refuses a state or municipal contract under Part 2 of Art. 528 of the Civil Code or from signing a supply agreement under Part 2 of Art. 507 of the Civil Code of the Russian Federation, it is necessary to prepare a written, motivated justification.

Risks when canceling the main contract

By concluding a preliminary purchase and sale agreement, the parties guarantee that within the agreed period they will sign an agreement under which the Seller will transfer and the Buyer will accept certain property. According to Art. 429 of the Civil Code of the Russian Federation, in such an agreement it is necessary to indicate:

• the item to be transferred;
• price;
• deadline for concluding the main transaction.

Despite the agreements, circumstances may always arise in which the Seller or Buyer refuses the main transaction. This situation is possible in the following cases:

• the emergence of a counterparty that offers better conditions;
• no need to buy or sell property;
• refusal of credit institutions to provide a loan;
• changes in plans, etc.

According to Art. 429 of the Civil Code of the Russian Federation, if one of the parties evades concluding an agreement, the other party may make a demand to complete a transaction against the will of the counterparty. The risk of forced conclusion of an agreement occurs for both the Seller and the Buyer if one of them refuses to fulfill their obligations.

The Buyer's reluctance to purchase the property may cause losses to the Seller. Thus, concluding a preliminary agreement for a long period can lead to a fall in prices for the subject of the contract. Then, if the transaction is rejected, the Seller will not only lose the promised money, but will also lose the opportunity to sell the property on favorable terms. In addition, by prior agreement, the future Buyer may request improvements to the subject of the contract (for example, to carry out repairs in the apartment, install a fence on the site), which, if he evades the purchase, can be burdensome for the Seller.

Features for government contracts

If the winning bidder has provided false information or does not actually meet the requirements from the procurement documentation, the customer has the right to refuse to sign the government contract unilaterally (clause 9 of Article 31 of the 44-FZ). Such a reasoned refusal to conclude a contract based on the results of bidding also arises in the following cases:

• if the supplier has offered selling prices for vital and essential drugs that are not registered or exceed the maximum selling price (clause 10 of article 31 of 44-FZ);
• if the contractor refuses to reduce the price for vital and essential drugs to the established value of the maximum selling price (if purchases are made from the National Medical Center for Federal needs over 10 million rubles and from the National Medical Center established by a constituent entity of the Russian Federation for municipal needs).

If the winner of the order produces the medicines themselves, then the price does not matter. If the parties unlawfully refused a government contract, they face a fine of 50,000 rubles (Part 3 of Article 7.32 of the Code of Administrative Offenses of the Russian Federation, decision of the Federal Antimonopoly Service of Russia in case No. K-1799/17 of December 27, 2017). If the customer unreasonably unilaterally refused the contract, the contractor has the right to force him to sign and demand recovery of damages through the court (Part 1 of Article 107 44-FZ, Clause 4 of Article 445 of the Civil Code of the Russian Federation, Resolution of the Arbitration Court of the North Caucasus District No. F08-1015/2018 in case No. A32-13476/2017 dated 04/10/2018).

Is it possible to withdraw an application?

In short: you can withdraw your application only until the application deadline.

. After this, it becomes mandatory for the supplier.

What about more details?

According to the rules of Law No. 44-FZ, an application can be withdrawn at any time before the expiration of the application submission period established in the procurement notice. It coincides with the moment of “opening the envelopes” (opening the customer’s access to the texts of applications).

If the customer has not received your feedback before the application deadline, then such feedback is not valid. Be careful and submit documents in advance, not at the last seconds.

After this, you cannot refuse the submitted application. The customer’s commission begins its work and if your application is recognized as the best, then both parties have an obligation to conclude a contract

.

Try contacting the customer.

You can, of course, contact the customer and explain your reluctance to fulfill the contract. There is a chance that the customer will look at your application very carefully and find reasons to reject it. But this option depends solely on the execution of your documents and on the position of the commission members. Let's not forget that for unlawful rejection of an application they may incur personal administrative liability (clause 2, clause 6 of Article 7.30 of the Code of Administrative Offenses of the Russian Federation).

If the protocol for summarizing the procurement results is published, the parties move to the stage of concluding a contract. In this situation, refusal to sign the contract is tantamount to evasion.

If the supplier evades concluding a contract, the customer is obliged to send information about the evader to the territorial OFAS. He will decide whether to include you in the register of unscrupulous suppliers.

ConsultantPlus instructions will help you refuse a government contract without consequences

Open

to read.

If the participant evaded the government contract, the customer will not sign such an agreement. Grounds for disagreement:

1. Did not sign within the established time frame. 2. Did not provide security for the obligations of the contract or did not provide it in full.

There are no other grounds for unilateral refusal. If the customer has discovered a justified reason to refuse the government contract, he publishes the protocol in the Unified Information System no later than the next day. The protocol must be sent to the procurement participant within two days. The protocol indicates the place and date of its execution, information about the contractor, details of the government contract and justification of the reasons why the customer refuses to conclude it.

IMPORTANT!

If the winning bidder refuses to sign a state or municipal contract unilaterally, the security payment made will not be returned to him.

Why can a bank refuse to open an account?

The bank has no right to refuse this.
This rule is enshrined in Art. 846 of the Civil Code of the Russian Federation. But there are exceptions to it. The Bank of Russia has established minimum requirements4 for documents required to open an account. At the same time, credit institutions have the right to determine additional requirements for the set of documents, the procedure and timing for their provision, as well as criteria, in case of non-compliance with which the bank may refuse service.

In addition, the bank will refuse if it is not possible to provide banking services to the client. This is usually due to a lack of technological capabilities or the application of sanctions to the bank in the form of a ban on opening new accounts.

Also, the refusal of the bank may be permitted by law or other legal acts (paragraph 2, paragraph 2, article 846 of the Civil Code of the Russian Federation).

How to compose

There is no unified form provided. The organization draws up a notice on company letterhead. Instructions on how to write a refusal to sign a supply agreement:

1. Specify the postal address of the recipient (counterparty) and sender (organization).
2. Enter the number of the outgoing letter.
3. Title the document: notice.
4. State the reasons why the company refuses to sign the agreement. Provide a reasoned justification.
5. Sign the letter from the manager, indicating his position and full name. Put a stamp if it is used in the institution.

The Civil Code does not provide for liability for refusal to conclude an agreement (Article 450.1 of the Civil Code of the Russian Federation). For the contractor's evasion from signing a state or municipal contract, the FAS includes him in the register of unscrupulous suppliers. Such a contractor loses the opportunity to participate in procurement.

Refusal to sign a contract

You have become the winner of the contract to fulfill the order. However, during coordination with the customer, certain points were discovered that were not initially specified in the specification. For example, the customer specified that not only the supply of equipment was required, but also its complete assembly. As a result, the costs of fulfilling obligations have become higher, and this is not profitable for you. What is the right thing to do?

Strictly speaking, the winning bidder cannot refuse to sign the contract with the customer. Even the above cost increase is not a valid reason for this. It is stipulated that the participant should clarify all unclear points with the customer at the stage of submitting proposals. And if the application was submitted, then the participant thought through all the risks and agreed to the terms of the contract.

Refusal to participate in the tender at this stage is considered evasion - information about the supplier will be included in the RNP. This will have a bad impact on his reputation and will deprive him of the opportunity to participate in procurement for 2 years.

Let's look at 3 unofficial ways to refuse to sign a contract. But it should be remembered that all of them are associated with the risk of falling into the RNP.

• The easiest way would be to try to negotiate with the customer to terminate the contract by mutual agreement immediately after it is signed. There is a chance that the customer will not mind. Although, as a rule, he is also not interested in bringing the situation to the attention of the FAS.
• Find discrepancies in the documentation in your application that you sent to the winning tender. You can contact the FAS with a complaint about the actions of the customer, accusing him of having to reject your application. The complaint is submitted within 5 days after the publication of the protocol for consideration of applications.
• Skip the deadline for signing the contract by preparing evidence of your innocence in advance. For example, a certificate of illness of a manager, hacking of a corporate network. In this case, you will have the opportunity to defend your innocence before the FAS commission, and you will not be included in the RNP. But remember that this is falsification, and the commission often takes the customer’s side.

What to do if the bank refused to open an account?

You can try to open an account in another bank.
Each credit institution has its own requirements and attitude towards clients. If it is important for you to become a client of a particular bank or you have already received a refusal elsewhere, you will have to send a request asking to indicate the reasons for the refusal. The client has the right to demand justification with reference to paragraph. 4 tbsp. 4 of Law No. 115-FZ. After this, he can submit documents to the bank confirming that there are no grounds for refusal. They must be reviewed within 10 working days. Then the bank must inform the client about the elimination of the grounds that caused the refusal, or the impossibility of such elimination. In the latter case, the client can contact the interdepartmental commission created at the Bank of Russia (clauses 13.4–13.5 of Article 7 of Law No. 115-FZ).

An interdepartmental commission will consider the client’s application, check his arguments, attached documents and make a decision on the absence or existence of grounds for refusal.

Article 445 of the Civil Code of the Russian Federation gives the bank the right to make a decision on concluding an agreement to open an account within 30 days. After this period, the client has the right to go to court with a demand to force the bank to enter into an agreement. In court, the bank will have to prove that it lawfully refused to open an account for the client. Let us note that judicial practice is not in favor of citizens. This is explained by the fact that banks do not have the right to serve suspicious clients, and this concept can be interpreted very broadly.