Real Property Lease Under Federal Law No. 44-FZ: State Contract Terms, Procurement Risk Assessment, and Legal Procedure

 

August 10, 2026

BRACE Law Firm©

 

Real estate lease agreements are highly demanded in commercial turnover. However, in the sphere of procurement for state needs (the "State Procurement" or "Procurement"), lease relations are not as widespread. This is because state customers (the "State Customers" or "Customers") do not carry out commercial or manufacturing activities. Furthermore, the authorities usually allocate buildings and structures necessary for the Customers to perform their functions and tasks under the right of operational management or within special projects. Nevertheless, State Customers periodically need to temporarily use facilities, requiring them to adapt the flexible nature of a lease to the rigid rules of Federal Law No. 44-FZ dated April 5, 2013, On the Contract System in the Sphere of Procurement of Goods, Works, and Services for Ensuring State and Municipal Needs (the "Law No. 44-FZ").

We will analyze the terms of the state contract considering the specifics of lease relations, and provide an overview of the most problematic issues arising during procurement related to real estate leasing.

Terms of the Lease State Contract

Law No. 44-FZ establishes the mandatory terms that must be present in a contract for state and municipal needs (Parts 2, 3, 4-9, 12, 13, 13.1 of Article 34 of Law No. 44-FZ):

• contract price;
• performance period for the main obligation by the supplier or contractor (in this case, the lessor);
• liability terms;
• the procedure and deadlines for the Customer to accept the supplied goods, performed work (its results), or rendered service regarding their quantity, completeness, and volume compliance with the requirements established by the contract (Part 13 of Article 34 of Law No. 44-FZ). The Civil Code of the Russian Federation (Civil Code) does not establish a frequency for such acceptance for lease agreements. Moreover, drafting service acceptance certificates in each settlement period for a lease is not mandatory at all. Such acceptance should be distinguished from the acceptance-transfer of the leased asset itself, since the transfer of the asset to the lessee and its return to the lessor are formalized by a transfer deed or another transfer document signed by the parties (Article 655 of the Civil Code, applied to the lease of buildings and structures, and by virtue of Paragraph 2 of Article 650 of the Civil Code, to the lease of enterprises). Therefore, when concluding a contract, it is necessary to determine whether the acceptance of lease services will be a one-time event (i.e., after the entire lease term ends) or periodic (for example, monthly or quarterly). Typically, service acceptance serves as the basis for payment; thus, the frequency of such acceptance will depend on the schedule and funding capabilities of the Customer;
• conditions on the procedure and deadlines for issuing documents confirming the acceptance of lease services;
• conditions on the procedure and deadline for the lessor to provide security for warranty obligations (if the contract provides for such security);
• if the volume of goods, works, or services to be consumed cannot be determined when concluding the contract (Part 24 of Article 22 of Law No. 44-FZ), the contract must state that payment for the goods (works or services) shall be made based on the unit price of the goods (works, services) based on the quantity actually provided to the Customer, but in an amount not exceeding the maximum contract price. It should be noted that this condition is practically never applied in lease state contracts. The Customer must clearly define the terms and the leased asset when preparing the contract, so the volume of consumed services in this case is known;
• if the contract provides for phased performance and the payment of an advance, the contract shall include a condition on the advance payment size for each contract performance stage as a percentage of the respective stage price;
• a provision on decreasing the amount that the Customer shall pay to a legal entity, individual, or individual entrepreneur by the amount of taxes, fees, and other mandatory payments to the budgets of the budgetary system of the Russian Federation, if, in accordance with the tax legislation of the Russian Federation, the Customer is subject to pay such taxes, fees, and other mandatory payments;
• the payment period shall not exceed 7 business days from the date the Customer signs the acceptance document, subject to the exceptions explicitly listed in the rule (Part 13.1 of Article 34 of Law No. 44-FZ). For lease contracts, the exception provided by Clause 2 of Part 13.1 of Article 34 of Law No. 44-FZ has practical significance, stipulating that if the acceptance document is executed without using the Unified Information System (EIS), the maximum payment period is 10 business days from the acceptance document execution date. Violating the payment term or procedure constitutes an independent administrative offense (Part 8 of Article 7.30.2 of the Code of Administrative Offenses of the Russian Federation (CAO RF): a fine on officials in the amount of 1% of the contract price (separate stage of contract performance, advance), but not less than 10,000 and not more than 50,000 rubles);
• a contract performance schedule, if the contract is concluded for a term exceeding three years and the contract price exceeds 100 million rubles (Part 12 of Article 34 of Law No. 44-FZ). This requirement applies directly to the long-term lease of large facilities;
• standard contract terms established by the Government of the Russian Federation, if they are approved for the respective procurement subject (Part 11 of Article 34 of Law No. 44-FZ).

When concluding a lease agreement for state or municipal needs, these terms must be present in the contract. However, there are exceptions to this rule: Part 15 of Article 34 of Law No. 44-FZ lists cases when a contract may be concluded in simple written form in accordance with the Civil Code provisions for transactions. These are contracts concluded pursuant to Clause 1, Clauses 4 and 5 (except for contracts concluded pursuant to Part 12 of Article 93 of Law No. 44-FZ), Clauses 8, 9, 15, 20, 21, 22, 23, 26, 28, 29, 33, 37, 40, 41, 44, 45, 46, 50 - 53, 56, 63 of Part 1 of Article 93 of Law No. 44-FZ. The requirements of Parts 4-9, 11-13 of Article 34 of Law No. 44-FZ may not apply to the listed types of contracts.

When structuring the contract, the Customer must determine whether a specific lease agreement falls under these exceptions.

First, competitive procurement does not fall under the exceptions. Therefore, if the lessor is searched through a request for quotations, an electronic auction, or a tender, the contract text must contain the mandatory terms. Second, the list of exceptions does not include Clause 32 of Part 1 of Article 93 of Law No. 44-FZ (lease agreement with a single supplier). Consequently, the mandatory terms specified in Part 13 of Article 34 of Law No. 44-FZ must be included in the lease agreement regardless of the procurement method: a competitive procedure or a single-source procurement contract. This requirement does not apply to procurements under Clauses 4, 5 of Part 1 of Article 93 of Law No. 44-FZ – the so-called small procurement for an amount not exceeding 600,000 rubles.

Theoretically, the Customer is not prohibited from concluding lease contracts via small procurement. However, in practice, the Customers do not use this procurement form for leasing buildings, structures, or land plots, because the law provides a special Clause 32 of Part 1 of Article 93 of Law No. 44-FZ for real estate lease agreements with a single supplier. Therefore, the small procurement form can be used for leasing movable property, such as equipment, vehicles, or automated workstations. When preparing a small procurement, the lease contract may be drafted in a more flexible format without strictly complying with the requirements of Part 13 of Article 34 of Law No. 44-FZ.

It is important to note that the exceptions established in Part 15 of Article 34 of Law No. 44-FZ do not apply to any contract terms, but only to those listed in Parts 4-9, 11-13 of Article 34 of Law No. 44-FZ. These include liability provisions, as well as acceptance and payment procedures. Terms such as the subject matter of the contract, price, and the deadline for performing the main obligation must invariably be present in any agreement, and the provisions of Part 15 of Article 34 of Law No. 44-FZ do not apply to them.

For the Customer, violating these requirements can have negative consequences both at the procurement stage and during contract performance. The absence of mandatory terms in the contract provides grounds for a complaint to the Antimonopoly Authority.

For instance, the Perm OFAS Russia reviewed a complaint regarding a lease contract that did not reflect information on the deadlines for accepting the rendered lease services. Furthermore, the OFAS commission found that the Customer had posted a service acceptance certificate in the contract register, whereas the contract did not establish a procedure for signing such a certificate.[1]

Another example involves a complaint against the Customer's actions during a single-source procurement for the lease of non-residential premises. The complaint was based on the absence of conditions on the acceptance of rendered services in the draft contract (the procedure and deadlines for acceptance were not established). The applicant believed this violated its interests. The Moscow OFAS Russia deemed this a violation of the provisions of Part 13 of Article 34 of Law No. 44-FZ.[2]

The Komi OFAS Russia examined a situation where the contract lacked mandatory terms at the time of execution, but the parties subsequently signed a supplementary agreement that supplemented the contract's content. The supplementary agreement detailed the acceptance procedure, stipulating that the lessee, within 7 business days after receiving the service acceptance certificate from the lessor, reviews the results and accepts the rendered services. In case of refusal to accept, the lessee sends a reasoned refusal to the lessor within 7 business days. The Antimonopoly Authority concluded that the contract, together with the supplementary agreement, contained the mandatory terms regarding the procedure and deadlines for accepting the rendered service, as well as the procedure and deadlines for formalizing the results of such acceptance. Consequently, there was no violation of Part 13 of Article 34 of Law No. 44-FZ.[3]

In addition to the mandatory state contract terms listed in Law No. 44-FZ, a real estate lease agreement must contain the following information:

• the real estate object must be identified in the contract text. It is necessary to specify the address of the building or structure, room designations (if any), and the cadastral number (which serves as the identifying feature of a real estate object);
• the description of the object must specify the area provided for lease;
• it is required to indicate the right holder (owner) of the object, as well as the date and details of the registration of their rights. If the contract is concluded by a person other than the owner, it must contain information on their authority to lease the object;
• the transfer of the real estate object for lease and its return to the lessor shall be formalized by object transfer deeds. These deeds are independent documents; they record the transfer of the object from one organization to another and contain a description of its condition and defects. They are not primary accounting documents, so they should not be confused with the lease service acceptance certificates, which are accounting documents and serve as the basis for payment. The parties formalize lease service acceptance certificates strictly in accordance with the rules of Law No. 44-FZ. If the contract was concluded based on the results of competitive electronic procedures, the certificates are signed in the EIS in electronic form. In a single-source procurement contract, the service acceptance certificate is not generated in the EIS; it can be drawn up as a universal transfer document or in another format. In turn, the object transfer or return deed can be executed in a free format or according to the template attached to the draft contract.

To the above, one should add a block of civil legislation requirements. Failure to comply with them entails the risk of the agreement being recognized as not concluded, regardless of how flawlessly the rules of Law No. 44-FZ were observed:

• data allowing for the definitive identification of the property to be transferred under the lease are a material condition; in their absence, the agreement is considered not concluded (Paragraph 3 of Article 607 of the Civil Code). Such information includes the cadastral number and the address of the real estate object. If a part of the object that has not undergone cadastral registration is leased, a graphic description of such part (e.g., on an explication or floor plan) must be attached to the contract;
• the right to lease property belongs to its owner; persons authorized by law or the owner may also act as lessors (Article 608 of the Civil Code). If the counterparty is an institution or a unitary enterprise, it is necessary to verify the owner's consent to dispose of the property (Articles 295, 297, 298 of the Civil Code), and in the case of a sublease, the lessor's consent (Paragraph 2 of Article 615 of the Civil Code);
• a lease agreement for a building or structure concluded for a term of at least one year is subject to state registration and is considered concluded from the moment of such registration (Paragraph 2 of Article 651 of the Civil Code); a similar rule applies to land plot leases (Paragraph 2 of Article 26 of the Land Code of the Russian Federation (the "Land Code")). This explains the widespread practice of concluding lease contracts for an 11-month term. However, if the contract is concluded for 1 year or more, it must explicitly allocate the obligation to submit documents for registration, the timeframe for these actions, and the allocation of related expenses.

The status of the lessor deserves separate attention. If the prospective lessor is a state or municipal enterprise or institution, concluding a lease agreement for the property assigned to it generally requires competitive bidding pursuant to Article 17.1 of Federal Law No. 135-FZ dated July 26, 2006, On Protection of Competition (the "Law No. 135-FZ"). This requirement is independent of Law No. 44-FZ: a lawful single-source procurement on the lessee's side does not exempt the lessor from observing the antimonopoly procedure, and failure to observe it creates a risk of challenging the transaction. At the same time, Part 1 of Article 17.1 of Law No. 135-FZ contains a closed list of exceptions, which is decisive for procurement. In particular, bidding is not required if the rights of possession and (or) use are transferred to state bodies, local government bodies, state extra-budgetary funds (Clause 2 of Part 1 of Article 17.1 of Law No. 135-FZ) or to state and municipal institutions (Clause 3 of Part 1 of Article 17.1 of Law No. 135-FZ). Since the Customers under Law No. 44-FZ are typically such entities, leasing state or municipal property for state needs in most cases does not require bidding under Article 17.1 of Law No. 135-FZ.

Price of the Lease Contract: Valuation Methodology and Transparency

The price of any state contract is its mandatory and material term. If the volume or quantity of goods (works, services) is known during the procurement, the contract price is fixed and is determined for the entire performance term (this condition must be recorded in the contract). When the volume or quantity of goods (works, services) is not known in advance, the procurement notice, procurement documentation, and the contract must specify the unit price of the good, work, or service and the maximum contract price (Part 24 of Article 22 of Law No. 44-FZ). In cases established by the Government of the Russian Federation, the estimated contract price or the price formula and the maximum contract price are also indicated. Such a situation is possible when leasing vehicles or standard movable property (e.g., manufacturing equipment), where the lessee-Customer does not know the number of leased property items in advance. For real estate lease agreements, this type of procurement is virtually impossible, since the exact number and characteristics of the objects (buildings, structures), as well as their lease term, must be determined at the procurement preparation stage.

When a contract is divided into stages, the price of each stage is set in an amount reduced proportionally to the reduction of the Initial Maximum Contract Price (IMCP).

Article 22 of Law No. 44-FZ enshrines the rule that the contract price must be justified. This rule applies:

• to the Initial Maximum Contract Price (IMCP), i.e., when conducting competitive procurement;
• to the price of a contract with a single supplier (contractor, executor) based on the grounds specified in Clauses 3, 6, 6.1, 11, 12, 16, 18, 19, 22, 23, 30-35, 37-41, 46, and 49 of Part 1 of Article 93 of Law No. 44-FZ. The price justification must be included in the single-source procurement contract.

Clause 32 of Part 1 of Article 93 of Law No. 44-FZ falls within the "30–35" range of the specified list (Part 4 of Article 93 of Law No. 44-FZ). Consequently, the lease contract price must be justified both during competitive procurement and when concluding a single-source procurement contract.

There are 5 pricing justification methods:

• comparable market price method (market analysis);
• normative method, which essentially represents maximum prices for a good, work, or service established at the state level. The method is used when legal acts establish requirements for the quantity, consumer properties, quality, and other characteristics of goods (works, services) that ensure state and municipal needs but do not lead to the procurement of goods, works, or services with excessive consumer properties or luxury items. For example, St. Petersburg has approved maximum hourly rates for the Customer for renting passenger cars with a driver (when the car is rented in Moscow or St. Petersburg);[4]
• tariff method is used when prices for a good, work, or service are determined by regulated prices and tariffs in accordance with the law. It should be noted that state-owned real estate is leased at rates approved by the state (especially when it comes to leasing without bidding). The basis for such value is the cadastral value. However, these rates are not regulated tariffs. Regulated tariffs are set by state bodies for certain types of goods and services, such as utility or transport services. Cadastral value is determined based on pricing factors as a result of state cadastral valuation and is used for taxation and other relations connected with real estate.[5] Therefore, the tariff method is not used to procure lease services;
• design and estimate methods are applied to works on the construction, reconstruction, capital repair, demolition of a capital construction object, and works on the preservation of cultural heritage objects performed on the basis of design documentation;
• cost method may be applied when it is impossible to use the above methods or in addition to them. The price is justified as the sum of incurred costs and a profit customary for a certain field of activity. Customary direct and indirect costs for the production or acquisition and (or) sale of goods (works, services), costs for transportation, storage, insurance, and other expenses are taken into account.

If none of the five specified methods is suitable, the Customer has the right to use other methods. In this case, the justification for the impossibility of using other methods must be included in the justification of the IMCP or the contract price.

The comparable market price method is generally a priority (Part 6 of Article 22 of Law No. 44-FZ). This approach also applies to procurements in the leasing sector, even if the agreement is concluded without bidding. On this issue, the Federal Treasury provided clarification in 2014: the comparable market price method (market analysis) is the priority for determining and justifying the IMCP or the price of a contract, including one concluded with a single supplier. At the same time, it is also permissible to use other methods to conclude a lease transaction.[6]

Let us examine the priority method in more detail. The Customer can use various methods to analyze market prices (Part 5 of Article 22 of Law No. 44-FZ):

• publicly available information on market prices;
• commercial offers from suppliers for identical (or, in their absence, homogeneous) goods, works, or services;
• information obtained from posting requests for prices of goods, works, or services in the Unified Information System.

It is recommended to send requests to at least 5 suppliers who have a successful track record of performing similar contracts without penalties over the past three years and whose information is publicly available (Clauses 3.7.1, 3.9 of the methodological guidelines approved by the Order of the Ministry of Economic Development of Russia No. 567 dated October 2, 2013, On the Approval of Methodological Guidelines for the Application of Methods for Determining the Initial (Maximum) Contract Price, the Price of a Contract Concluded with a Single Supplier (Contractor, Executor) (the "Methodological Guidelines")).

Goods (works, services) are recognized as identical if they have identical main characteristic features (Part 13 of Article 22 of Law No. 44-FZ). When determining the identity of goods, minor differences in their appearance may be disregarded. When determining the identity of works or services, the characteristics of the contractor or executor and their business reputation in the market are taken into account. Although lease relations in the contract sphere fall into the category of services, the characteristics of the leased asset, rather than the characteristics of the lessor, are primarily compared for identity.

Homogeneity is the absence of identity but the presence of similar characteristics, i.e., commercial or functional interchangeability (Parts 14, 15 of Article 22 of Law No. 44-FZ).

Comparable prices should be used for market analysis. Contract performance conditions are deemed comparable if differences between them do not significantly affect the result the Customer expects to achieve (Part 16 of Article 22 of Law No. 44-FZ). In an extreme case, these differences can be accounted for by applying appropriate adjustments to such conditions. The Customer may use indices or coefficients to recalculate prices, taking into account differences in characteristics or commercial or financial conditions.

To calculate the IMCP or the contract price, the formulas provided in the Methodological Guidelines are applied. In the formulas, the Customer utilizes at least three price offers from different suppliers (Clause 3.19 of the Methodological Guidelines). Based on the analysis of the received commercial offers, the Customer should determine the price range (coefficient of variation). The normal coefficient of variation shall not exceed 33% (Clause 3.20.2 of the Methodological Guidelines). If the price range exceeds the standard coefficient of variation, further market research should be conducted.

In addition to commercial offers, the Customer can analyze market prices using publicly available information from the following sources (Part 18 of Article 22 of Law No. 44-FZ):

• successfully performed contracts, i.e., completed and "closed" without penalty enforcement. It is recommended to use at least 3 contracts for market analysis (Appendix No. 2 to the Methodological Guidelines);
• information in advertising, catalogs, product descriptions, and other offers addressed to an indefinite circle of persons and recognized as public offers;
• information on quotes on Russian exchanges or electronic platforms (this source is not effective for lease agreements);
• data from state statistical reporting;
• price information contained in the official information sources of authorized state bodies and municipal authorities, in the official information sources of foreign states or international organizations, as well as in publicly available publications;
• information on the market value of valuation objects determined in accordance with the legislation regulating valuation activities (this source is often used for lease relations);
• data from information and pricing agencies, publicly available results of market studies, and the results of market studies conducted by the Customer itself.

If the lease contract lacks a price justification, this may serve as grounds for a complaint to the Antimonopoly Authority, which may subsequently raise the issue of initiating an administrative offense case. It should be noted that the qualification of such a violation has changed. Prior to the reform, the specific offense was non-compliance with the procedure or form of IMCP justification (Part 2 of Article 7.29.3 of the Code of Administrative Offenses of the Russian Federation (the "CAO RF")), and posting documents in the Unified Information System (EIS) in violation of legislative requirements was qualified under Part 1.4 of Article 7.30 of the CAO RF. By Federal Law No. 500-FZ dated December 28, 2024, which entered into force on March 1, 2025, Articles 7.29, 7.29.1, 7.29.2, 7.29.3, and 7.30 of the CAO RF were invalidated, and Article 7.30.1 of the CAO RF was introduced. Currently, such violations can be qualified under two CAO RF provisions.

First, violating the requirements for determining and justifying the IMCP, the single-source contract price, or the initial unit price of a good, work, or service – Part 3 of Article 7.30.1 of the CAO RF. This violation entails a fine on officials in the amount of 1% of the IMCP (contract price), but not less than 10,000 and not more than 50,000 rubles.

Second, violating the requirements for the content of documents generated during procurement or for the procedure and deadline for posting information and documents – Part 5 of Article 7.30.1 of the CAO RF. This violation entails a warning or a fine on officials ranging from 3,000 to 10,000 rubles.

Examples of such practice are present in all regions.[7]

It should be noted that the competence of regulatory bodies in shaping and justifying the contract price is delineated. Control over price determination and justification falls under the authority of internal state (municipal) financial control bodies (Part 8 of Article 99 of Law No. 44-FZ). The Antimonopoly Authority, when reviewing a complaint, checks for the presence of a justification within the notice or contract but does not evaluate the economic accuracy of the calculation. The decision of the Khabarovsk OFAS Russia No. 7-1/434 dated December 24, 2025, is indicative; in it, the commission, having established the presence of the IMCP justification in the notice, rejected the argument regarding its inaccuracy by referring to the delineation of authority.[8]

Procedural forms must also be distinguished. An appeal by a public association or an association of legal entities exercising public control (in the examples below, the Association of Building Organizations "Public Control") does not constitute a procurement participant's complaint and is not reviewed under the rules of Chapter 6 of Law No. 44-FZ. Such an appeal is filed as part of public control (Article 102 of Law No. 44-FZ) and serves as grounds for an unscheduled inspection (Subclause "a" of Clause 2 of Part 15 of Article 99 of Law No. 44-FZ).

For instance, the Moscow OFAS Russia received an appeal from ABO Public Control regarding violations during a single-source procurement for the lease of a non-residential premises. The OFAS established that the Customer had justified the IMCP in accordance with the requirements of Law No. 44-FZ: earlier contracts were taken as the basis for determining the price. A calculation of the fixed part of the rent rate was provided. Therefore, no violations were found.[9]

The Krasnodar OFAS Russia reviewed a complaint from ABO Public Control against a contract due to improper formatting of the price justification. The contract annex titled "justification and calculation of the contract price" contained data on the 1-month rental rate, and the comparable market price method was applied. The OFAS found no violations, as the law does not contain requirements for the formatting of the contract price justification.[10]

Carelessness by Customer officials responsible for posting information in the EIS and the contract register is not grounds for exemption from liability.

For example, the Moscow OFAS Russia reviewed a contract that lacked a price justification. The Customer used the market analysis method to determine the price. Based on price information in advertising, catalogs, product descriptions, and other offers addressed to an indefinite circle of persons and recognized as public offers under civil law, a comparative analysis of non-residential premises offered for lease was conducted, and the IMCP was calculated. However, this information was not included in the contract due to human error. The OFAS considered this a violation of Part 4 of Article 93 of Law No. 44-FZ.[11]

In another example, the Customer provided a justification for the rent value but failed to post the justification in the contract register. The Krasnodar OFAS recognized the Customer's actions as a violation of Law No. 44-FZ.[12]

The Customer must remain vigilant, even if its supervisory bodies (e.g., overseeing committees) have approved the documentation and the draft contract. A case in point is when the Customer, while preparing a draft contract for the lease of residential premises, made a clerical error and omitted the IMCP justification from the contract text. Subsequently, the draft contract and the IMCP justification were sent for approval as separate documents to the Federal Treasury Department for the Mari El Republic and received a positive resolution. As a result, the Customer forgot to merge the files, and the IMCP justification was skipped when posting contract information in the EIS. The Antimonopoly Service determined that the lease contract for non-residential premises lacked a price justification; therefore, the Customer's actions constituted a violation.[13]

If problems with posting the contract price justification in the EIS occur through no fault of the Customer, the Customer is exempted from liability.

For example, the Customer attached the documents to the contract, but when displaying contract data in the EIS, the protocol with the contract price calculation was not uploaded by the unified information system. The Moscow OFAS found no violation.[14]

In another example, the Customer executed the price justification in accordance with Article 22 of Law No. 44-FZ. However, due to incorrect document scanning, the full information was initially not displayed in the register. By the date the case was heard, the lease agreement with the price justification had been properly posted in the EIS. The Antimonopoly Service decided not to hold the Customer liable.[15]

The choice of price justification method must align with the essence of the procurement: applying a method that does not match the subject and terms of the contract can inherently lead to a conclusion of violating Article 22 of Law No. 44-FZ. At the same time, correctly applying the market analysis method is not a violation. For example, the Moscow Regional OFAS Russia reviewed the price justification for a single-source lease agreement based on collected commercial offers: the Customer sent inquiries to lessors regarding properties with similar characteristics and conditions. The commission acknowledged that the comparable market price method (market analysis) was applied and found no violations.[16]

The cost method is rarely used to justify the price of a lease contract, but if other methods are unavailable, it can be applied to justify the rent rate (Part 10 of Article 22 of Law No. 44-FZ). For example, the Moscow OFAS recognized such a justification as lawful. The Customer included the following costs in the contract price: heating, power supply, water supply, sewage, solid waste disposal, sanitary-disinfestation works, elevator maintenance, complex services for maintaining the sanitary condition and cleaning of office premises and common areas, access control and security of premises, operational maintenance of premises, utility networks and equipment, and fire safety compliance. The Customer also obtained an expert opinion verifying the IMCP accuracy.[17]

The Customer may use an appraisal report on the market value of rent prepared by an independent appraiser to determine the rent rate for a state contract. Market valuation results can serve as the basis for the justification, but the appraisal report itself is not a justification. The Customer is obligated to independently prepare and execute the contract price (or IMCP) justification and attach the appraisal report to it. It is also important to note that the Customer must engage the independent appraiser to conduct the valuation. The Customer should not use a market valuation initiated by third parties (such as a potential lessor).

For instance, the Moscow OFAS examined a non-residential premises lease contract, the price of which was justified based on an appraisal of the market value of the right to use the premises under lease terms. The independent appraiser's report was attached to the contract. The price justification was based on the total area of the leased premises, taking into account the cost per square meter per year. The Antimonopoly Service deemed this justification lawful.[18]

A notable stance was taken by the Dagestan OFAS when a State Customer used an appraisal report on the market value of rent provided by the owner of the leased property to establish the real estate lease contract price. The Customer did not order the market valuation independently and did not draft any document to serve as the contract price justification. Such actions by the Customer were deemed a violation.[19]

If the price relies on analyzing cost indicators from other contracts (publicly available information), the provisions of Part 18 of Article 22 of Law No. 44-FZ must be strictly observed. Applying this method does not exempt the Customer from the obligation to draft and execute the price (or IMCP) justification. An example is the decision of the Altai OFAS concerning a non-residential premises lease agreement that lacked a price justification. The Customer explained that the price was based on another previously concluded contract that contained a price justification, which was confirmed by information from the procurement EIS contract register. The Antimonopoly Service ruled that the reviewed contract was concluded without a proper price justification.[20]

Penalties in Lease State Contracts

General rules for applying penalties in state contracts are set out in Parts 4 – 9 of Article 34 of Law No. 44-FZ, as well as in the Resolution of the Government of the Russian Federation No. 1042 dated August 30, 2017, On Approving the Rules for Determining the Amount of Fine Charged for Improper Performance by the Customer, Non-Performance or Improper Performance by the Supplier (Contractor, Executor) of Obligations Provided for by the Contract (Except for Delayed Performance of Obligations by the Customer, Supplier (Contractor, Executor)), and the Amount of Penalty Charged for Each Day of Delayed Performance by the Supplier (Contractor, Executor) of the Obligation Provided for by the Contract, on Amending the Resolution of the Government of the Russian Federation No. 570 dated May 15, 2017, and Invalidating the Resolution of the Government of the Russian Federation No. 1063 dated November 25, 2013 (the "Resolution No. 1042"):

• for the Customer's delay in performing obligations, the supplier (in our case, the lessor) has the right to demand a penalty in the amount of 1/300 of the key rate of the Central Bank of the Russian Federation applicable on the penalty payment date from the overdue amount for each day of delay (Part 5 of Article 34 of Law No. 44-FZ);
• for the Customer's failure to perform other contract obligations (except for delays), a fixed fine is established, the amount of which depends on the contract price: 1,000 rubles if the contract price is up to and including 3 million rubles; 5,000 rubles – from 3 to 50 million rubles inclusive; 10,000 rubles – from 50 to 100 million rubles inclusive; 100,000 rubles – over 100 million rubles (Clause 9 of the Rules approved by Resolution No. 1042);
• for a supplier-lessor's delay in performing obligations, the Customer charges a penalty in the amount of 1/300 of the key rate of the Central Bank of the Russian Federation applicable on the penalty payment date for each day of delay. The calculation base here is not the debt amount but the contract price (or the separate stage of contract performance price), reduced by an amount proportional to the volume of actually performed obligations (Part 7 of Article 34 of Law No. 44-FZ). For continuous leases, this distinction is fundamental: a delay in transferring the asset at the beginning of the lease term is charged based on virtually the entire contract price;
• for non-performance or improper performance of the contract terms (except for delays) by the lessor, the lessor must pay a fixed fine. The fine amount can range from 10% to 0.1% of the contract price (depending on the price size);
• if the lessor was selected via a competitive procedure for small businesses or socially oriented non-profit organizations (Clause 1 of Part 1 of Article 30 of Law No. 44-FZ), this fine is 1% of the contract price, but not more than 5,000 rubles and not less than 1,000 rubles;
• if the procurement procedure involved selecting a winner who offered the highest price for the right to conclude the contract, the fine amount is 10%, 5%, or 1%, depending on the contract price (up to 3 million rubles; from 3 to 50 million rubles; from 50 to 100 million rubles, respectively). The base is the IMCP if the contract price does not exceed it, and the contract price if it exceeds the IMCP (Clause 5 of the Rules approved by Resolution No. 1042);
• if the contract is divided into stages, the fine amount as a percentage is calculated from the cost of the stage in which the obligation breach occurred;
• for a lessor's failure to perform or improper performance of a non-monetary obligation, the fine is 1,000 rubles for a contract price up to 3 million rubles; 5,000 rubles – from 3 to 50 million rubles inclusive; 10,000 rubles – from 50 to 100 million rubles inclusive; 100,000 rubles – over 100 million rubles (Clause 6 of the Rules approved by Resolution No. 1042);
• the total amount of fines charged to the Customer cannot exceed the contract price; this limit works symmetrically for fines charged to the supplier-lessor (Clauses 11, 12 of the Rules approved by Resolution No. 1042). The limit is established separately for each party and is not cumulative;
• charging a penalty to the supplier (lessor) is a right the Customer may choose to exercise or not at its discretion. However, for the Customer, sending a demand for penalty payment is an obligation (Parts 6, 8 of Article 34 of Law No. 44-FZ), failure of which may result in administrative liability: failure to apply liability measures to a supplier in case of contract term violations by the latter is explicitly named in Part 6 of Article 7.30.2 of the CAO RF (fine on officials from 10,000 to 20,000 rubles).
• a party is exempt from liability if it proves that the violation occurred due to force majeure or through the fault of the other party.

These rules must be fixed in the contract and are mandatory for compliance.

To the foregoing, two mechanisms must be added that affect the actual liability size.

First, the Government of the Russian Federation has the right to establish cases and procedures for writing off penalties under state contracts (Part 9.1 of Article 34, Part 42.1 of Article 112 of Law No. 44-FZ). The corresponding Rules were approved by Resolution of the Government of the Russian Federation No. 783 dated July 4, 2018.[21] Specifically, accrued penalties are subject to write-off when the total amount of accrued and unpaid penalties does not exceed 5% of the contract price (Clause 3 of the Rules). If the total amount of accrued and unpaid penalties exceeds 5% of the contract price but is no more than 20% of the contract price, the Customer writes off 50% of the accrued and unpaid penalty (fine, late payment penalty) amounts, provided that 50% of the accrued and unpaid penalty (fine, late payment penalty) amounts are paid.

Second, a penalty may be reduced by a court if it is clearly disproportionate to the consequences of the obligation breach (Article 333 of the Civil Code). Clause 78 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 7 dated March 24, 2016, On Application by Courts of Certain Provisions of the Civil Code of the Russian Federation on Liability for Breach of Obligations, establishes that the rules for penalty reduction under Article 333 of the Civil Code apply even when the penalty size is determined by law, including Law No. 44-FZ. For lease contracts, this is relevant when a fine is charged to the lessor based on the total contract price, while the violation itself is short-term and curable.

As noted earlier, there are several exceptions in the law under which the requirements of Parts 4-9 of Article 34 of Law No. 44-FZ may not apply: these are the procurement types listed in Part 15 of Article 34 of Law No. 44-FZ. Fundamentally, contracts concluded following competitive procedures do not fall under these exceptions, nor is the single-source lease agreement listed there.

Therefore, the general rules for charging penalties apply to a lease contract, regardless of whether it was concluded following a competitive selection or with a single supplier. The Amur OFAS decision serves as confirmation. The Antimonopoly Service reviewed a lease contract where a late payment penalty for both parties (lessee and lessor) was set at 0.5% of the debt amount per day of delay. Such a penalty rate does not comply with the requirements of Article 34 of Law No. 44-FZ and Resolution No. 1042; consequently, the contract conditions contradict legislative requirements.[22]

Peculiarities of Lease Terms in the State Contract

Civil legislation rules permit a situation where the lease term is not specified in the agreement. In this case, the contract is considered concluded for an indefinite term (Paragraph 2 of Article 610 of the Civil Code).

However, for contractual relations, uncertainty in the main obligation's performance period is fundamentally unacceptable. Therefore, when preparing procurement documentation (including the draft contract), the lease term must be clearly defined.

Two additional restrictions are tied to the lease term.

First: the rule regarding the renewal of an agreement for an indefinite term if use of the property continues after the lease expires (Paragraph 2 of Article 621 of the Civil Code) does not function in the contract system. Extending the relationship is only possible through a new procurement or by amending the contract based on the grounds of Article 95 of Law No. 44-FZ. The lessee's preemptive right to conclude an agreement for a new term (Paragraph 1 of Article 621 of the Civil Code) also does not create an independent ground to bypass Articles 24 and 93 of Law No. 44-FZ when concluding a contract.

Second: the lease term must correlate with the allocated budgetary obligation limits. State and municipal contracts are paid within budgetary obligation limits, and concluding contracts for a term exceeding their validity period is permitted in cases and pursuant to the procedure established by the Government of the Russian Federation, the highest executive body of a constituent entity of the Russian Federation, or the local administration (Article 72 of the Budget Code of the Russian Federation). This, and not just state registration considerations, explains the practice of concluding lease contracts within the financial year.

Consequently, the question arises regarding the application of a provision that allows the lease relationship to apply retroactively to a period preceding the agreement execution date (the "retroactive clause"). According to Paragraph 2 of Article 425 of the Civil Code, parties may establish that the terms of an agreement they conclude apply to their relations that arose before the agreement's execution, unless otherwise provided by law or follows from the nature of the respective relations. In general, commercial leasing practice, this provision is highly sought after: the agreement approval process can be lengthy, and the lessor intends to receive payment from the date the asset is actually used, rather than from the document signing date.

However, using retroactive clauses in state contracts is a highly contentious issue. For a long time, the Ministry of Finance of Russia stated that such a condition did not comply with contract legislation norms.[23] Nevertheless, in practice, this position was perceived not as a direct instruction but rather as a recommendation, and Customers concluded contracts (including lease contracts) with a retroactive condition.[24] Certainly, this refers solely to single-source agreements, since a contract based on competitive procurement results inherently cannot apply retroactively.

Currently, the approach to this issue has become stricter. In February 2026, FAS Russia issued Letter No. GR/10525/26 dated February 11, 2026, "On Review of the Request," which clarified that a condition providing for the possibility of performing a contract before its conclusion is unlawful. Legal relations between the parties commence strictly from the moment the contract is executed.

This approach is driven by the contract performance framework, which includes activities carried out after its execution (Part 1 of Article 94 of Law No. 44-FZ). The law does not foresee the possibility of beginning the performance of contract obligations before its conclusion. Without an executed contract, it is impossible to record budgetary obligations in budget accounting; therefore, non-contractual performance and acceptance will lead to actual indebtedness. Regulatory bodies deem a retroactive clause in a contract a violation.[25]

Yet, even after the February clarifications from FAS, State Customers continue to employ the retroactive condition in single-source lease agreements.[26]

Another relevant issue for lease contracts is dividing them into stages. A lease is a continuous obligation and often cyclical; therefore, contract performance is typically broken down into reporting (or settlement) periods. These settlement periods should be distinguished from contract performance stages.

A contract stage is a part of the obligation for which the Customer must ensure acceptance, execute an acceptance document, and make payment (Clause 8.4 of Part 1 of Article 3 of Law No. 44-FZ; the legislator uses the term "separate stage of contract performance"). The price of each stage is specified in the contract.[27] Acceptance of each stage is carried out in the same procedure as the acceptance of the entire contract's performance (this follows from the provisions of Parts 7, 13 of Article 94 of Law No. 44-FZ). The Customer must post information on the performance and acceptance of each stage in the contract register.

At first glance, any settlement period in a lease contract could be classified as a stage: the period's price is set, each period must be paid, and therefore, the completion of each period is (usually) formalized with acceptance documents. The payment and acceptance schedule may vary – for example, payments may be made per settlement period with one-time acceptance at the end of the lease term (in this case, payments would be considered advances).

Clear information on the presence or absence of stages is crucial, as this affects the procedure for calculating penalties. If stages are designated in the contract, a fine for the lessor will be calculated from the respective stage's cost, whereas if there is no division into stages, it will be calculated from the total contract price (Clause 3 of the Rules approved by Resolution No. 1042). Thus, if the lessor has the opportunity to discuss and negotiate the agreement terms with the Customer (in the case of single-source procurement), it is advisable to establish stages in the contract to reduce liability.

The issue is that a state contract stage is not merely a set of formal criteria. Regularly formalizing acceptance and delivery for settlement periods and making periodic payments do not inherently signify the presence of stages. Acceptance certificates can be viewed simply as a basis for making payments, rather than as stage acceptance.

If the Customer decides to divide performance into stages, this must be explicitly stated in the contract text.[28] A stage is an isolated part of the obligation, and this isolation must be clearly reflected in the notice and the contract itself.

A separate clause listing all stages, the deadlines for performing each, and specifying the price for each stage – even if the price is identical for every settlement period – is inserted into the draft contract. For example, a lease contract would stipulate: "The deadlines for performing separate contract stages are: Stage 1 - from August 1, 2026, to August 31, 2026; Stage 2: from September 1, 2026, to September 30, 2026." The price for each stage is broken down similarly: "The price of the contract performance stages is: Stage 1 – (...) rubles; Stage 2 – (...) rubles." If a lease agreement is concluded via a competitive procurement method, the stages must be indicated in the notice, and the initial maximum price must be specified for each stage (regardless of it being unchanged).

If the Customer wishes to avoid – phased performance, this must also be explicitly stated in the text. Typically, the absence of stages is recorded in a separate clause: The contract is performed without division into stages. Paid lease periods can be called "settlement" or "reporting" periods, avoiding the term "stage".

When a Lease State Contract Can Be Concluded Without Competitive Bidding

In the contract system, all procurement methods are divided into two types (Part 1 of Article 24 of Law No. 44-FZ):

• competitive procurements (when the Customer selects a counterparty via a specific procedure);
• non-competitive procurements (primarily, single-source procurement).

Competitive procurement methods are (Part 2 of Article 24 of Law No. 44-FZ):

• tenders (open electronic tender, closed tender, closed electronic tender);
• auctions (open electronic auction, closed auction, closed electronic auction);
• request for quotations in electronic form. This procurement method can be used if the IMCP does not exceed ten million rubles (Part 10 of Article 24 of Law No. 44-FZ).

To select a lessor, the State Customer can use all the aforementioned methods; it has autonomy in choosing the procurement method. However, the competitive method is the priority.

It should be noted that the Customer has the option to conclude any agreement without bidding if the contract price does not exceed 600,000 rubles and the annual limit for such procurements is observed – no more than 2 million rubles or no more than 10% of the Annual Volume of Procurements and no more than 50 million rubles (Clause 4 of Part 1 of Article 93 of Law No. 44-FZ). But regarding lease agreements, this rule can only be utilized for movable property, since another special provision applies to real estate – Clause 32 of Part 1 of Article 93 of Law No. 44-FZ. This clause allows concluding a single-source lease agreement regardless of the contract price for real estate:

• non-residential buildings, structures, facilities, non-residential premises, land plots;
• residential premises located in a foreign state if the Customer operates in a foreign state.

Additionally, a lease contract without bidding is possible for residential premises, including those located in a foreign state, by federal executive bodies or federal state bodies where military service is provided by federal law, or by bodies or institutions authorized by them to provide housing to military personnel and their cohabitating family members (Clause 63 of Part 1 of Article 93 of Law No. 44-FZ).

In practice, competitive state procurements are mainly conducted for leasing vehicles, special equipment, inventory, or standard equipment. As for real estate objects, they are more often leased without bidding via a single-source contract. This is due to the need to use a specific premise, building, or structure possessing unique characteristics required by the Customer for its activities.

For instance, in 2024, FAS Russia reviewed a lease agreement for sports facilities in Moscow concluded without a competitive procedure. The Customer explained that selecting the specific facility was dictated by the specifics of the training and educational process of the rowing and sailing department. The facilities needed to be equipped according to the requirements of the educational, training, and methodological sessions. Furthermore, the leased complex is located near a natural water body, the Moskva River. There is another similar sports complex in the city, but it did not suit the Customer as it is located near a smaller artificial water body. The Antimonopoly Authority acknowledged that there were no equivalent facilities in Moscow, thus deeming the single-source agreement lawful.[29]

Another illustrative example is a series of Sakhalin OFAS cases concerning the conclusion of contracts for leasing advertising structures. Bidding was not conducted, prompting an unscheduled inspection. The leased structures were metal structures on a concrete base intended for displaying banner advertising. The Customer decided competitive procedures could be bypassed based on Clause 32 of Part 1 of Article 93 of Law No. 44-FZ.

However, the Customer failed to consider that this clause provides exceptions only for land plots and non-residential real estate objects. Real estate includes land plots, subsoil plots, and everything firmly connected to the land, i.e., objects that cannot be moved without disproportionate damage to their purpose, including buildings, structures, and incomplete construction objects (Paragraph 1 of Article 130 of the Civil Code). A structure is defined as a construction result representing a volumetric, planar, or linear building system having above-ground, surface, and (or) underground parts, consisting of load-bearing and sometimes enclosing building structures intended for performing various production processes, storing products, temporarily housing people, and moving people and cargo.[30] Meanwhile, advertising structures are considered movable property as they are installed for a specific period and dismantled (moved) without disproportionate damage to their function as technical devices.[31]

The Antimonopoly Authority concluded that the procurement subject, declared as "leasing an advertising structure for outdoor advertising display," did not match its actual nature. Essentially, the procurement object was the lease of movable property – advertising structures – and the provision of services for outdoor advertising placement. Such a lease does not fall under Clause 32 of Part 1 of Article 93 of Law No. 44-FZ; consequently, the procurement had to be conducted via competitive methods.[32]

For the Customer, such a classification entails more than just a directive to rectify the violation: concluding a single-source contract in cases not provided for by contract system legislation constitutes an independent administrative offense (Part 4 of Article 7.30.1 of the CAO RF – a fine on officials ranging from 30,000 to 50,000 rubles).

Contract Performance Security and Anti-Dumping Measures

The requirement for contract performance security is generally established by the Customer (Part 1 of Article 96 of Law No. 44-FZ). However, for procurements stipulated by Clauses 28–34 of Part 1 of Article 93 of Law No. 44-FZ, which includes leases under Clause 32, establishing such a requirement is a right, not an obligation of the Customer (Part 2 of Article 96 of Law No. 44-FZ). In practice, security is rarely established for single-source lease contracts: the Customer's property risk is limited, and the lessor's expenses for a bank guarantee ultimately increase the rent rate.

If the lessor is selected via a competitive method, the contract performance security requirement is generally mandatory (Part 1 of Article 96 of Law No. 44-FZ). If the requirement is established, the draft contract must specify its size, term, and provision procedure, as well as the procedure for returning funds. Additionally, anti-dumping measures must be considered: if the IMCP is fifteen million rubles or less during a tender or auction, and the participant with whom the contract is concluded offers a price twenty-five percent or more below the IMCP, the rules of Article 37 of Law No. 44-FZ apply. This is highly relevant for leasing: the spread of rental rates in the market is wide, and a twenty-five percent drop from the IMCP occurs regularly.

Amendment and Termination of the Lease State Contract

Leasing is a continuous obligation, so the issue of contract amendment is just as important as its conclusion. Generally, amending a contract's material terms during its performance is prohibited (Part 1 of Article 95 of Law No. 44-FZ). However, for leasing, the legislator established a direct exception: Clause 10 of Part 1 of Article 95 of Law No. 44-FZ allows amending material terms by mutual agreement for contracts concluded with a single supplier under a number of grounds, and Clause 32 of Part 1 of Article 93 of Law No. 44-FZ is explicitly listed there.

The practical significance of this rule is hard to overstate: it allows the parties to adjust the rent amount, modify the composition and area of transferred premises, and extend the lease term by mutual agreement. Limitations remain, however. The amendment must not turn into a new procurement or replace a competitive procedure; the amended contract price must also be justified per the rules of Article 22 and Part 4 of Article 93 of Law No. 44-FZ; the supplementary agreement and the new price justification are posted in the contract register; amendment is possible only within allocated budgetary obligation limits.

The cost of an error is quite high. Amending contract terms when the law does not provide such a possibility incurs liability under Part 3 of Article 7.30.2 of the CAO RF (a fine on officials from 10,000 to 50,000 rubles, and on legal entities from 100,000 to 300,000 rubles), and if the amendment leads to an increase in the contract price or additional expenditure of budget funds – under Part 4 of the same article (1% of the contract price, but not less than 50,000 and not more than 200,000 rubles for officials; 1% of the contract price, but not less than 200,000 and not more than 400,000 rubles for legal entities).

For contracts concluded after competitive procedures, Clause 10 of Part 1 of Article 95 of Law No. 44-FZ does not apply, and the ability to amend material terms is limited by the general grounds enshrined in this provision of the law.

Contract termination is possible by mutual agreement, by court decision, or due to unilateral repudiation of the contract in accordance with civil legislation (Part 8 of Article 95 of Law No. 44-FZ). The right to unilateral repudiation must be explicitly stipulated in the contract. It is advisable to synchronize the grounds for such repudiation with Articles 619 and 620 of the Civil Code – using property with a material breach of contract terms, failure to provide the object, or the presence of defects impeding its use. The Customer must remember that unilateral repudiation due to a material breach by the lessor results in sending information about the lessor to be considered for inclusion in the register of unscrupulous suppliers (Article 104 of Law No. 44-FZ). For the lessor, this means that termination by mutual agreement when performance difficulties arise is preferable to driving the situation to the Customer's unilateral repudiation.

State Registration of the Lease State Contract

The registration component of a lease contract in procurement documentation is typically less developed than others, although it dictates the moment the agreement is concluded and the enforceability of the lessee's rights against third parties. State registration of real estate leases is carried out by registering the lease agreement itself; either party to the agreement may apply for state registration (Part 1 of Article 51 of Federal Law No. 218-FZ dated July 13, 2015, On State Registration of Real Estate (the "Law No. 218-FZ")). Independent registration of a "lease right" is not provided for by law: the encumbrance on the lessor's property rights created by the agreement is registered only when the agreement itself is registered (Clause 6 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 59 dated February 16, 2001). Meanwhile, state registration does not substitute the agreement as the basis for creating, amending, and terminating the lease right and does not interfere with its content (Ruling of the Constitutional Court of the Russian Federation No. 154-O dated July 5, 2001).

Three circumstances are crucial in this regard.

First, a contract for a term of at least one year is considered concluded from the moment of state registration (Paragraph 2 of Article 651 of the Civil Code), and this rule also applies to non-residential premises leases (Clause 2 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 53 dated June 1, 2000), while Paragraph 2 of Article 26 of the Land Code applies to land plots.

Second, the widespread "11-month contract" trick does not always work: a term starting from the 1st day of a given month of the current year through the 30th (31st) day of the preceding month of the following year is recognized as equal to one year for the purposes of Paragraph 2 of Article 651 of the Civil Code (Clause 3 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 66 dated January 11, 2002); thus, such a contract is subject to registration. If the parties do not intend to register the lease as an encumbrance, it is advisable to set a lease term ending no later than the penultimate day of the respective month of the following year.

Third, until state registration, the contract produces no consequences for third parties: for the Customer, this entails the risk of losing possession if the property owner changes, and the inability to assert their rights against a new acquirer or pledgee.

The registration procedure must be factored in when amending the contract. A transaction providing for the modification of a registered transaction's terms is subject to state registration (Paragraph 2 of Article 164 of the Civil Code). Therefore, a supplementary agreement to a registered lease contract that adjusts the composition and area of transferred premises, the term, or the rent amount requires making an entry in the Unified State Register of Real Estate (EGRN); until that moment, the amendments cannot be invoked against third parties. For contracts concluded under Clause 32 of Part 1 of Article 93 of Law No. 44-FZ, amending material terms is inherently permissible due to Clause 10 of Part 1 of Article 95 of Law No. 44-FZ; however, the requirements of Law No. 44-FZ and Law No. 218-FZ are independent here and must be followed in parallel.

Hence the array of conditions that should be included in a draft contract concluded for a term of at least one year: the party obligated to submit the state registration application; the submission deadline calculated from the contract conclusion date; the list of documents submitted by each party; the allocation of expenses, including state duties; the parties' interaction protocol if state registration is suspended (Article 26 of Law No. 218-FZ) and the consequences of its denial, up to providing grounds for unilateral repudiation of the contract.

The state duty for registering a real estate lease agreement, including parts of real estate registered simultaneously with cadastral recording, is 44,000 rubles for legal entities (Subclause 27.2 of Clause 1 of Article 333.33 of the Tax Code of the Russian Federation). Legal entities are charged a state duty of 2,000 rubles for registering an amendment to or termination of a lease agreement.

The most frequent practical problem is leasing a part of an object. The state cadastral registration of a part of a land plot, building, or structure (an entrance, premises, including a floor or multiple floors, or a group of rooms with shared building structures within a floor) is performed simultaneously with the state registration of the lease agreement for such part (Part 5 of Article 44 of Law No. 218-FZ). If a land survey plan or a technical plan for the part is not submitted with the application, the cadastral registration of the part is not performed, and the agreement is registered as an encumbrance on the real estate object as a whole. An exception is provided by Part 2 of Article 44 of Law No. 218-FZ: if the EGRN contains information about all premises in a building or structure, and a part of the building (structure) comprising one or several premises or adjoining rooms within a floor is leased, the rights registration authority ensures cadastral registration of such part without a technical plan submission. State registration of a lease agreement for a part of a land plot is carried out for a part registered in the EGRN or simultaneously with the state cadastral registration of such part (Part 3 of Article 44 of Law No. 218-FZ).

Therefore, when a part of an object is leased, the Customer must pay special attention during the procurement preparation phase to whether this part is formalized by a technical (land survey) plan and whether it has been placed on cadastral record. If the part of the object is not properly isolated, this will result either in the suspension of state registration or in the registration of an encumbrance on the entire object, to which the lessor may justifiably not consent. If the Customer is still prepared to lease a part of the object without placing it on cadastral record, a floor plan and an explication highlighting the leased part must be attached to the contract (this simultaneously fulfills the requirement of Paragraph 3 of Article 607 of the Civil Code regarding the certainty of the leased object and eliminates the risk of the contract being deemed unconcluded).

Rent Structure and Associated Expenses

The rent structure warrants a separate review. The contract price is fixed and determined for the entire contract performance period (Part 2 of Article 34 of Law No. 44-FZ). This significantly restricts the use of the "fixed part plus variable part based on actual utility consumption" mechanism customary in commercial turnover: a variable component, the size of which is undefined at the contract conclusion date, contradicts the fixed price requirement. Technically, this situation does not fall under Part 24 of Article 22 of Law No. 44-FZ, since the volume of the main service – the use of the asset – is known to the Customer.

Typically, the issue of paying for utility services is resolved in two ways. The first option is to include operating and utility expenses in the fixed rent, justifying them when determining the contract price. Such a list of costs (heating, power supply, water supply, sewage, waste disposal, elevator maintenance, cleaning, security, operational maintenance of utility networks, fire safety) was recognized as a valid basis for the cost method in the aforementioned Moscow OFAS Russia case. The second option is for the Customer to enter into standalone utility service contracts, including with a single supplier under Clause 8 of Part 1 of Article 93 of Law No. 44-FZ, leaving only the fee for using the asset in the lease contract. However, this option is feasible only if the Customer possesses the technical capability to connect independently.

Key Takeaways

When concluding a real estate lease agreement for state and municipal needs, one should follow the rules of Law No. 44-FZ while factoring in the general leasing provisions (that do not conflict with contract legislation):

• as a general rule, procurement is conducted via competitive bidding, and single-source procurement is permitted only in cases expressly listed in Part 1 of Article 93 of Law No. 44-FZ. For leasing non-residential buildings, structures, facilities, non-residential premises, and land plots, such a case is Clause 32 of Part 1 of Article 93 of Law No. 44-FZ, the application of which the law does not predicate on the impossibility or impracticality of bidding and is not limited by a price threshold;
• it is not recommended to use a retroactive clause in a lease agreement. Currently, retroactively applying the contract to a period preceding its execution is prohibited;
• one should distinguish between settlement (reporting) periods and contract stages. The presence of settlement periods defined in the contract does not imply division into stages. If the Customer intends to outline stages in the contract, this must be explicitly stated in the text. Dividing the contract into stages is in the lessor's interest, as this allows reducing the accrued fine size;
• price justification must be present in any contract, regardless of the procurement format. The Customer selects the justification method. The most applicable methods for leasing are market analysis, reviewing publicly available information, and the cost method. Setting the price based on an independent appraiser's report on the market value of rent is permissible. However, it is advisable that the Customer itself initiates such valuation, rather than the lessor or a third party;
• the contract must reflect the procedure for delivery and acceptance of lease services, and this acceptance must be differentiated from the transfer of the object itself. The object transfer typically occurs twice over the agreement term: transfer to the lessee at the beginning of the lease and return to the lessor upon usage completion. Object transfer and return deeds are not primary accounting documents, unlike service acceptance certificates, which are executed with a frequency fixed in the contract (e.g., at the end of each settlement period, at the end of a stage, or upon conclusion of the entire lease term);
• the penalty size and its accrual procedure in a lease contract are established according to the general rules of Resolution No. 1042 (this also applies to single-source agreements);
• a lease contract must contain all mandatory terms listed in Article 34 of Law No. 44-FZ. Furthermore, the contract must contain information inherent to a real estate lease agreement: object identification (cadastral number), its description and area, the owner's name, and details of the registration of their rights to the object;
• a contract concluded with a single supplier under Clause 32 of Part 1 of Article 93 of Law No. 44-FZ may be amended by mutual agreement concerning material terms (Clause 10 of Part 1 of Article 95 of Law No. 44-FZ);
• a contract performance security requirement for leasing under Clause 32 of Part 1 of Article 93 of Law No. 44-FZ is established at the Customer's discretion (Part 2 of Article 96 of Law No. 44-FZ);
• civil-law requirements for a lease agreement are observed alongside the requirements of Law No. 44-FZ: failure to agree on asset data or the rent size entails the agreement being deemed unconcluded (Paragraph 3 of Article 607, Paragraph 1 of Article 654 of the Civil Code), and an agreement concluded for a term of at least one year requires state registration (Paragraph 2 of Article 651 of the Civil Code, Paragraph 2 of Article 26 of the Land Code). If a state or municipal enterprise or institution acts as the lessor, compliance with Article 17.1 of Law No. 135-FZ must be verified.

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References

1. Decision of the Perm OFAS Russia No. 142 dated June 12, 2025.
2. Decision of the Moscow OFAS Russia dated June 10, 2025, in case No. 077/06/99-6926/2025; decision of the Moscow OFAS Russia dated June 17, 2025, in case No. 077/06/99-7398/2025.
3. Decision of the Komi OFAS Russia No. 011/06/99-330/2024 dated April 19, 2024.
4. Items 28, 29 of the Order of the Committee for State Order of St. Petersburg No. 100-r dated May 31, 2018, On Approval of the Values of Consumer Properties (including Quality Characteristics) and Other Characteristics (including Maximum Prices) for Certain Types of Goods, Works, Services.
5. Article 3 of Federal Law No. 237-FZ dated July 3, 2016, On State Cadastral Valuation.
6. Letter of the Federal Treasury No. 42-7.4-05/5.7-791 dated December 22, 2014, "On Sending Answers to Questions regarding the Application of Federal Law No. 44-FZ dated April 5, 2013".
7. Decision of the Mordovia OFAS Russia dated August 22, 2023, in case No. 013/06/99-534/2023; decision of the Krasnodar OFAS Russia dated August 10, 2023, in case No. 023/06/93-4026/2023.
8. Decision of the Khabarovsk OFAS Russia No. 7-1/434 dated December 24, 2025, in case No. 027/06/105-2105/2025.
9. Decision of the Moscow OFAS Russia No. 82 dated August 22, 2023, in case No. 077/06/104-10865/2023.
10. Decision of the Krasnodar OFAS Russia No. VP-340/2023 dated June 26, 2023, in case No. 023/06/93-3202/2023V.
11. Decision of the Moscow OFAS Russia dated June 15, 2023, in case No. 077/06/99-7823/2023V.
12. Decision of the Krasnodar OFAS Russia No. VP-289/2023 dated May 23, 2023, in case No. 023/06/99-2646/2023.
13. Decision of the Mari El OFAS Russia dated April 25, 2023, in case No. 012/06/99-340/2023.
14. Decision of the Moscow OFAS Russia dated May 17, 2023, in case No. 077/06/99-6644/2023.
15. Decision of the Krasnodar OFAS Russia No. VP-140/2023 dated March 23, 2023, in case No. 023/06/99-1434/2023.
16. Decision of the Moscow Regional OFAS Russia dated January 23, 2023, in case No. 050/06/99-50750/2022.
17. Decision of the Moscow OFAS Russia dated March 7, 2023, in case No. 077/06/99-2591/2023.
18. Decision of the Moscow OFAS Russia dated April 12, 2023, in case No. 077/06/99-4083/2023.
19. Decision of the Dagestan OFAS Russia No. 005/06/99-583/2025 dated April 29, 2025.
20. Decision of the Altai Republic OFAS Russia No. 3 KU RA dated January 24, 2023.
21. Resolution of the Government of the Russian Federation No. 783 dated July 4, 2018, On Writing Off Penalty (Fine, Late Payment Penalty) Amounts Accrued to the Supplier (Contractor, Executor) but Not Written Off by the Customer in Connection with Non-Performance or Improper Performance of Obligations Provided for by the Contract.
22. Decision of the Amur OFAS Russia dated May 7, 2025, in case No. 028/06/99-337/2025.
23. Letters of the Ministry of Finance of Russia No. 24-08-08/71743 dated August 1, 2024; No. 02-09-08/86853 dated September 12, 2023; No. 24-06-01/50455 dated August 7, 2017.
24. https://zakupki.gov.ru/epz/contract/contractCard/document-info.html?reestrNumber=1575200013326000003&contractInfoId=106760852
25. Item 3 of the Representation of the Accounts Chamber of the Russian Federation No. PR 02-143/02/1-01 dated May 25, 2018, On the Results of the Control Event 'Verification of the Execution of the Federal Law On the Federal Budget for 2017 and for the Planning Period of 2018 and 2019 and Budget Reporting on the Execution of the Federal Budget for 2017' in the Directorate of the Federal Service for Supervision of Communications, Information Technology, and Mass Media for the Central Federal District.
26. https://zakupki.gov.ru/epz/contract/contractCard/document-info.html?reestrNumber=2690106911126000082&contractInfoId=111085362
27. Decision of the Rostov OFAS Russia No. 061/06/51-1154/2024 dated April 12, 2024.
28. Decision of the North Ossetian OFAS Russia dated April 9, 2021, in case No. A191-04/2021; decision of the Moscow OFAS Russia dated March 24, 2021, in case No. 077/06/106-4719/2021; decision of the Moscow OFAS Russia dated March 23, 2021, in case No. 077/06/106-4625/2021; decision of the Moscow OFAS Russia dated March 22, 2021, in case No. 077/06/106-4553/2021; decision of the Moscow OFAS Russia dated May 27, 2019, in case No. 077/06/00-2013/2019.
29. Decision of FAS Russia dated May 31, 2024, in case No. P-129/24.
30. Clause 23 of Part 2 of Article 2 of Federal Law No. 384-FZ dated December 30, 2009, Technical Regulation on the Safety of Buildings and Structures.
31. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 8263/10 dated November 16, 2010, in case No. A33-13956/2009.
32. Decisions of the Sakhalin OFAS Russia dated July 20, 2022, in case No. 065/06/99-420/2022, in case No. 065/06/99-419/2022, in case No. 065/06/99-418/2022.