Preparation of pre-trial claims for procurement disputes according to 44-FZ and 223-FZ
In the process of executing a contract / agreement both with a customer and with a supplier (contractor, executor), there may be an occasion to contact the counterparty with the claim. The claim is prepared and forwarded when parties fail to resolve a problem through negotiations, so there is a need for a written request to the head of the procurement organization.
A claim is a written document that officially informs the counterparty of violations with the requirement to eliminate them voluntarily. It contains reasoned arguments, links to contract / agreement items, laws and other regulatory documents.
The purpose of the claim is to inform the counterparty about the problem that has arisen in the process of executing the contract / agreement, to solve it, and also, to prevent the occurrence of this problem in the future.
The objectives of the claim can be called:
- transfer of information about the breach of obligations;
- proposing a solution to the problem;
- bringing to the attention of the addressee information about the occurrence of possible adverse consequences in case of failure to comply with the requirements set forth in the claim.
A separate objective of sending a claim can be considered compliance with the pre-judicial order of the settlement, which is mandatory in a number of categories of disputes. So, in accordance with Part 5 of Article 4 of the Arbitration Procedure Code of the Russian Federation, compliance with the claim procedure for resolving the dispute is mandatory:
- when considering disputes on the collection of funds for claims arising from contracts or other transactions;
- when considering disputes arising from unjust enrichment;
- when considering other disputes, if compliance with the pre-judicial order for the settlement of such a dispute is established by law or by agreement.
As a general rule, the period for reviewing the claim is thirty calendar days from the date of its submission, unless other period and (or) procedure is established by law or contract.
It is not required to comply with the mandatory claim procedure for:
- mandated production;
- related to the performance by arbitration courts of the functions of assistance and control in relation to arbitration courts;
- on the recognition and enforcement of decisions of foreign courts and foreign arbitral awards.
The consequence of non-compliance with the claim procedure for resolving disputes may be the return of the claim to the claimant by the court, and in case the court makes a claim for proceedings - to leave it without consideration.
In addition, adverse consequences for litigation may occur if the claims differ from the claims contained in the claim. For example, a court may find the claim procedure to be non-complied with, if the claim contains a requirement to eliminate the deficiencies of the delivered goods (works performed, services rendered), and in the claim - a claim for reimbursement of expenses. Or the courts can see a violation of the claim procedure, if the amount of penalties specified in the claim has increased at the time of applying to the court with a lawsuit. In this case, it is indicated that the forfeit is calculated at the filing date of the claim, as well as filing an application for an increase in the amount of the claim in the case.
As a general rule, the claim includes the following information:
- a description of the subject and basic information, such as the date, conditions and circumstances of the delivery of the goods (works, services) with reference to the contract / agreement (if they are concluded);
- a description of the breach of obligations and the circumstances in which they occurred, as well as the actions taken by the claimant to solve the problem;
- references to the clauses of the contract / agreement (if any) or provisions of the law that have been violated;
- requirements or proposed solution to the problem;
- list of documents attached to the claim (if any);
- other information, the need to indicate which is reflected in the contract / agreement.
Documents attached to the claim are usually presented in the form of copies certified by the general manager or other person acting on the basis of the power of attorney. Original documents or extracts from them may also be attached. The claim is signed by the authorized person and sent to the addressee in the manner specified in the contract / agreement, and if this method is not specified – in any way that allows to record the fact of its direction and receipt. A copy of the claim and a document confirming the fact of its sending and delivery serve in court as evidence of the plaintiff's compliance with the claim procedure for resolving the dispute.
BRACE Law Firm has extensive practical experience in resolving disputes at the pre-judicial and judicial levels in the sphere of state and corporate procurements and provides legal support for trades. Our specialists are ready to assist you in preparing and submitting a claim, as well as organizing a claim work.
We offer the following services to the parties to the contracts / agreements concluded within the framework of state and corporate procurements:
- analysis of submitted documents and formation of legal position, as well as identification of risks and possible adverse consequences;
- offer options to resolve the disputed situation;
- verbal or written advice on the procedure for making a claim;
- preparation of a claim and a package of supporting documents;
- sending a claim to the counterparty.
- Lodging a complaint on actions (inactions) of a governmental customer and other persons in the controlling body according to the Law No 44-FZ
- Lodging a complaint on actions (inactions) of a customer and other persons in the controlling body according to the Law No 223-FZ
- Preparation of requests for clarification of the provisions of the procurement documentation
- Preparing and legal examination of procurement documentation
- Preparing and legal expertise of procurement regulations
- Legal examination of contracts and agreements according to the Laws No 44-FZ and No 223-FZ
- Legal advice on procurement issues under 44-FZ and 223-FZ
- Representation of interests in a court on disputes related to public procurements according to the Law No 44-FZ
- The court representation on disputes related to corporate procurements according to 223-FZ