Recovery of penalty in public and corporate procurement

Recovery of penalty in public and corporate procurement

One of the important areas of practice of “Public and corporate procurement” of BRACE Law Firm lawyers is Representation of interests in courts for the recovery of penalty in public and corporate procurement.

Within the framework of this category of disputes, the team of lawyers of the Firm has experience in supporting both the pre-trial and judicial stages of their resolution, as well as providing legal support at the stage of enforcement proceedings. Our advantage is that we have extensive experience in court cases involving the recovery of all types of forfeits, including under state and municipal contracts, as well as contracts concluded based on corporate procurement.

Recovery of penalty in public and corporate procurement

The main legal acts governing the recovery of a forfeit in the framework of state and corporate procurements are Federal Law of April 5, 2013 N 44- FZ “On the contract system in the field of procurement of goods, works, services to ensure state and municipal needs”, Federal Law of 18 July 2011 N 223-ФЗ “On the procurement of goods, works, services by certain types of legal entities” and the Civil Code of the Russian Federation.

The penalty shall be recoverable in connection with the delay in the performance of obligations under the contracts (penalty) or in connection with the admission by the suppliers of violations of other terms of the contracts (fine).

In contracts concluded based on the results of state and municipal procurements, the conditions for the penalty are mandatorily included in the contract. The procedure for calculating the size of the penalty is clearly regulated. Penalties for late performance of obligations are set with reference to the size of the refinancing rate of the Central Bank of the Russian Federation, and the size of the fine depends on the price of the contract. Whereas when concluding corporate procurement contracts , the amount of the penalty can be established by the customer independently on the basis of the provisions of the Civil Code of the Russian Federation, as well as in accordance with the current procurement regulation.

Moreover, according to the current legislation, if breaches of the contract arose due to the fault of the customer, the supplier may be exempted from payment of the penalty. Recovery of contractual penalty is possible only in case of violation of the terms of the contract if such violation is not connected with dishonest actions of the customer or force majeure circumstances.

Procedure of the recovery of penalty in public and corporate procurement

In both public and corporate procurements, a penalty is enforced, and a pre-trial procedure for resolving a dispute by sending a corresponding claim to the supplier is mandatory.

If the received claim is ignored or the supplier refuses to satisfy it, the dispute is subject to judicial review after the statement of claim is submitted to the court with the documents confirming the direction of the claim. The consideration of disputes of this category is referred to as the jurisdiction of the arbitration courts.

The main feature of disputes related to the recovery of suppliers' penalties within public and corporate procurement is the need for a comprehensive assessment of documentation confirming the violation of contractual conditions, the importance of performing correct calculations, as well as the collection and generation of evidence of the grounds for presenting claims for the forfeit. In this regard, it is extremely important when resolving disputes in this category is the choice of a competent approach and a comprehensive study of documents, materials, as well as the legal framework and judicial practice.

Legal services

  1. Legal analysis of documents and other evidence submitted by the client in a dispute on the recovery of penalty in public and corporate procurement
  2. Consultation of lawyers and lawyers of BRACE Law Firm regarding the prospects of judicial and / or pre-trial settlement of the dispute
  3. Preparation and submission of a claim to the supplier demanding payment of the penalty on a voluntary basis
  4. Development of a strategy and tactics for protecting a client in a court in disputes related to the recovery of penalty in public and corporate procurement
  5. Collection, preparation, and retrieval of evidence for a court case
  6. Preparation and filing of a statement of claim (application) and other procedural documents on a judicial dispute
  7. Representation of interests, case management in court by lawyers and completion of all necessary procedural actions
  8. Coordination of several parallel trials (if necessary)
  9. Preparation and support of the conclusion of amicable agreements concluded at various stages of the trial
  10. The appeal of judicial acts in the courts of appeal, cassation and supervisory review
  11. Support of enforcement proceedings
  12. Other legal assistance

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01.
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Preliminary analysis and
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Conclusion of legal services agreement
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On each stage we inform you about results
06.
We provide the result and prepared documents
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