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What if the supplier delays the delivery?

The supplier delayed the delivery, what is the procedure?

In accordance with Part 1 of Article 309 of the Civil Code of the Russian Federation, obligations must be performed properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements, in accordance with customs or other usually imposed requirements. This rule applies in full to obligations arising from contracts concluded in accordance with Law No. 44-FZ.

In practice, this rule is not always followed. A significant part of the contracts is executed with violations by the supplier (contractor, performer) of their terms. One of the most common violations is the violation by the supplier of the delivery time of the goods that are the subject of the purchase. Moreover, repeated (i.e. more than once) violation by the supplier of the terms of delivery of goods in accordance with clause 2 of part 2 of article 523 of the Civil Code of the Russian Federation is recognized as a material violation by the supplier of the terms of the contract and the basis for the unilateral refusal of the buyer (customer) to fulfill the supply contract.

Norms of the Civil Code of the Russian Federation on delay

When determining whether the seller has allowed a delay in the delivery of goods, the customer (buyer) must take into account the following legal requirements.

According to Article 457 of the Civil Code of the Russian Federation, the term for the seller to fulfill the obligation to transfer the goods to the buyer is determined by the contract of sale, and if the contract does not allow determining this period, in accordance with the rules provided for in Article 314 of the Civil Code of the Russian Federation. At the same time, in accordance with the provisions of Law No. 44-FZ (for example, paragraph 2 of Article 42), the deadline for fulfilling obligations under the contract, including the deadline or schedule for the delivery of goods, must be determined during the procurement and indicated in the notice of procurement and in the purchase documentation.

According to Article 458 of the Civil Code of the Russian Federation, unless otherwise provided by the contract of sale, the seller's obligation to transfer the goods to the buyer is considered fulfilled at the moment:

placing the goods at the disposal of the buyer, if the goods must be transferred to the buyer or the person indicated by him at the location of the goods. The goods are considered to be placed at the disposal of the buyer when, by the time stipulated by the contract, the goods are ready for transfer at the appropriate place and the buyer, in accordance with the terms of the contract, is aware of the readiness of the goods for transfer. The goods are not recognized as ready for transfer if they are not identified for the purposes of the contract by labeling or otherwise.

In cases where the obligation of the seller to deliver the goods or transfer the goods at its location to the buyer does not follow from the contract of sale, the seller’s obligation to transfer the goods to the buyer is considered fulfilled at the time of delivery of the goods to the carrier or communication organization for delivery to the buyer, unless the contract provided otherwise.

The fact of the transfer of goods by the seller to the buyer (customer) must be documented, for example, in the act of acceptance and transfer of goods, waybill or other similar document.

Requirements of 44-FZ governing liability for delay

delivered the goods in violation of the delivery time specified in the contract, the customer must apply the measures of responsibility provided for by the contract in respect of him.

Law No. 44-FZ provides for two types of liability - fines and fines . In this case, since the violation committed by the seller relates to the delay, the customer accrues fines and sends the supplier a demand for their payment. The claim form is arbitrary, our experts have compiled a claim template in accordance with the norms of the Civil Code of the Russian Federation and 44-FZ.

Penalties in accordance with Part 7 of Article 34 of Law No. 44-FZ are accrued for each day of delay in fulfilling the obligation by the supplier under the contract, starting from the day following the date of expiration of the deadline for fulfilling the obligation established by the contract, and is established by the contract in the amount of 1/300 of the current as of the date of payment of the penalty interest of the key rate of the Central Bank of the Russian Federation from the price of the contract (a separate stage of contract execution), reduced by the amount of fulfilled obligations under the contract (stage).

Thus, fines are charged not for the entire volume of obligations stipulated by the contract, but only for the part that was fulfilled in violation of the terms.

The period of delay

The period of delay is calculated starting from the first day after the expiration of the period in which the obligation was to be performed, up to and including the date of its actual performance.

Is the day of delivery of goods considered a day of delay when calculating the penalty?

Yes, the day of the actual fulfillment of the violated obligation, in particular, the day of delivery, is included in the period for calculating the penalty (paragraph four, clause 65 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 24, 2016 N 7)

You can calculate the penalty interest under the contract automatically at the current rate of the Central Bank of the Russian Federation in the Econom-Expert program.

Customer's actions in case of delay of the supplier

Accordingly, in case of delay by the supplier of delivery of goods, the customer must

• establish the fact of delay in the delivery of goods
• determine the cost equivalent of goods delivered with delay
• for different products from the assortment, the number of days of delay may be different. For example, the subject of the contract is the delivery of 15 laptops before September 1. Of which: 5 laptops were delivered and accepted by the customer on August 30 (no delay), September 3-7 (delay - 6 days) , 5 - 11 September (delay - 10 days), another 2 - 20 September (delay - 19days). Accordingly, for each product delivered late, the amount of penalties will be calculated separately, based on the number of days of delay in its delivery)
• calculate the penalties payable by the supplier
• send the supplier a request for their payment
• reflect the accrued penalties in the register of contracts (if information about this contract is included in the register of contracts)
• take measures to actually recover the accrued sanctions.

The ideal situation is if the supplier voluntarily transfers the amount of interest to the customer. Very few vendors do this. Accordingly, the customer himself, unilaterally, needs to take measures to actually recover the amount of the accrued sanctions. There are several options:

• withholding the amount of accrued sanctions from the cost of obligations payable by the customer to the supplier
• foreclosure to secure the performance of the contract Law 44-FZ"

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  Read also

  • Memo - Rules for "urgent" purchases0018
  • Memo - Changes in the terms of the contract (part 7 of article 95)
  • Memo - Reducing the price of the contract
  • Memo - Changes in the scope of work, services, quantity of goods within 10% foreign states, established by Decree of the Government of the Russian Federation of April 30, 2020 N 616, to "small purchases"0001

    BREACH OF DELIVERY OF GOODS UNDER CONTRACT 44-FZ

    In accordance with the norms of 44-FZ and the Civil Code of Russia, the parties that have entered into a contract must fulfill their obligations in good faith. One of the most common conflict situations in this area is the violation by the supplier of the terms of delivery of goods.

    In this case, the customer will have to carry out a whole cycle of work in order to call the unscrupulous counterparty to account.

    Relations between the supplier and the customer after the conclusion of the contract are regulated by the norms of paragraph 7 of the 44-FZ.

    It provides for the possibility of unilateral termination of the contract by the customer, as well as the imposition of penalties and fines on the counterparty in case of violation of the deadlines for the delivery of products or the provision of services.

    Before resorting to drastic measures, the customer must make sure that the deadlines have indeed been violated.

    To do this, check whether the application for the delivery of products was correctly filled out and whether the supplier received it. If you made an application by phone call, then it will be difficult for you to prove the fact of its transfer later. Therefore, it is best to send all applications in writing.

    After the fact of delay is established, you can start the claim work. To do this, you must submit a formal claim to the supplier. This is provided for by the norms of Article 34 of the 44-FZ. The claim is made in writing on the official letterhead of the organization.

    Complaint to the supplier

    At the very beginning of the proceedings, the customer sends a letter to the supplier demanding immediate delivery of the goods. The document must contain the following information:

    Description of the reason for writing the claim and the nature of the claims. It is recommended to provide links to contract clauses that were violated by the supplier.

    The period allotted for the supplier to eliminate the violation.

    It is not regulated by law, so it is better to set it at the level of 5-10 days.

    The consequences of a supplier's failure to meet customer requirements.

    Remind the supplier that they will be charged fines and penalties for failure to meet their obligations.

    

    The completed claim is endorsed by the signature and seal of the head of the organization. You can send it by registered mail with notification or hand it over personally to the representative of the counterparty.

    It should be remembered that writing a claim in such a situation is not a right, but an obligation. If the document is not sent to the supplier, the contract service worker himself may be held liable in accordance with the provisions of Article 7.32 of the Code of Administrative Offenses.

    The supplier violated the deadline, but the goods were still delivered

    If, after writing a claim, the supplier nevertheless brought the goods, the customer must record the fact of delay. To do this, it is enough to have on hand a claim correspondence and an act of acceptance and transfer of goods, on which the decree indicates the actual date of fulfillment of obligations.

    According to the norms of Article 405 of the Civil Code of Russia, a party that has delayed the performance of its obligations is obliged to compensate the counterparty for the losses associated with this.

    Therefore, the customer has the right to require the supplier to pay a penalty in the amount stipulated by the contract.

    In order to receive a penalty, the customer must send a written claim to the supplier. It must contain the calculation of the amount due for payment, the grounds for its accrual, as well as the details for which the funds should be received. The deadline for fulfilling the requirements is also prescribed.

    After that, three scenarios are possible:

    Supplier agrees to all requirements. In this case, he sends a letter to the customer about his intention to pay the penalty, and transfers the funds to the specified details.

    The supplier agrees that he violated the terms of delivery, but does not want to pay the penalty. The customer can collect it independently from the bank guarantee, if it is provided for by the document, in addition, it is possible to withhold a penalty from the funds transferred as contract security.

    However, if such a condition was not stipulated in the contract, the supplier may apply to the court with a request to recognize the actions of the customer as illegal.

    The supplier does not agree with the amount charged. In this case, he must immediately apply to the court. Only the judge will decide the question of the legality of charging a penalty, its amount and the procedure for payment.

    If the supplier manages to prove that the delay in delivery was due to the fault of the customer, then he may be exempted from paying the penalty altogether.

    After receiving a penalty from the supplier, the customer is obliged to fully pay for the delivered goods. At this point, the contract is considered fulfilled. Supporting documents are published in the EIS.

    Goods not delivered at all

    If, in response to a claim about a violation of the delivery time, the counterparty does not respond or says that the goods will not be delivered, the customer has the right to terminate the contract unilaterally. Such a right must necessarily be provided for by the treaty itself.

    After the decision to terminate the contract, the customer publishes it in the UIS within three days. At the same time, he sends a corresponding notification. If within 10 days from the date of receipt of the notification the supplier does not fulfill its obligations, the contract is automatically recognized as terminated.

    After that, the customer is obliged to transfer information about such a supplier to the register of unscrupulous suppliers (RNP).

    If the termination of the contract has resulted in losses, the customer is entitled to claim compensation. To do this, you must first submit a claim in writing. In it you need to describe your requirements and the amount that the counterparty must pay. If he refuses to voluntarily cover the losses, you should apply to the court with the appropriate requirement.

    Only part of the goods was delivered

    Sometimes there are situations when the contract provides for one delivery, but in fact the goods are delivered in parts.

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