Is it possible for the customer to include in a municipal contract an indication that the repairs performed under it are routine repairs if the work is described differently in the text of the contract? Experts from the Legal Consulting Service GARANT Nadezhda Verkhova and Arkady Serkov answer.

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Nadezhda Verkhova

Arkady Serkov

An electronic auction was held for major repairs of the dam, and a municipal contract was signed. Does the customer have the right by an additional agreement to change the name of the work, namely, replace the word “major” with “current” (repair), while the volume and types of work do not change?

First of all, it is necessary to take into account that from Part 1 of Art. 2, art. 5, part 1, part 2 art. 9 of Federal Law No. 94-FZ of July 21, 2005 “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” (hereinafter referred to as Law No. 94-FZ) it follows that a contract concluded in accordance with this Law is this is a civil contract concluded by the customer in accordance with the Civil Code of the Russian Federation, taking into account the provisions of this Law. In other words, the norms of the Civil Code of the Russian Federation apply to the contract, unless otherwise provided by the norms of Law No. 94-FZ.

According to paragraph 1 of Art. 450 of the Civil Code of the Russian Federation, amendment and termination of the contract are possible by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation itself, other laws or the contract.

In turn, Law No. 94-FZ establishes strict restrictions on changing the contract. First of all, this concerns Part 5 of Art. 9 of Law N 94-FZ, which introduces a ban on changing, when concluding and executing a contract, its terms and conditions specified in a number of norms of Law N 94-FZ listed in this part, including in Part 10 of Art. 41.12 of this Law, which states that a contract based on the results of an open auction in electronic form (hereinafter referred to as the Auction) is concluded on the terms specified in the notice of such an Auction and the documentation about the Auction. The notice of the Auction for the performance of work must, among other things, contain the subject of the contract indicating the scope of work performed (clause 4, part 4, article 41.5 of Law N 94-FZ). From this instruction we can conclude that the terms of the contract that cannot be changed include, among other things, the name of the work performed, since it is impossible to determine the scope of work without specifying what kind of work.

However, from a comparative analysis of Art. 307, 432, 702, 703, 740, 743, 763 of the Civil Code of the Russian Federation, we can conclude that the “name of work” should be understood as either an indication of a specific type of work - for example, excavation work, facing work, or a description of the result of work under an agreement (contract) - for example, the construction of a three-story residential building or a road junction. From this point of view, the definition of work performed under a contract as current or major repairs can be considered not as a name, but as a characteristic of the work. That is, based on the fact that the contract is concluded for the manufacture or processing (processing) of a thing or for performing other work with the transfer of its result to the customer, we can say that the terms “current repairs”, “major repairs”, “reconstruction” reflect the degree processing of a thing achieved as a result of the implementation of a set of works under a contract. At the same time, the characterization of a specific set of works as major or current repairs or reconstruction is a technical issue, the solution of which depends on the customer’s assignment and the characteristics of the result of such work.

In relation to capital construction projects, the definitions of reconstruction and major repairs are given in the Town Planning Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation). Thus, reconstruction of capital construction projects (except for linear objects) is a change in the parameters of a capital construction project, its parts (height, number of floors, area, volume), including superstructure, restructuring, expansion of a capital construction project, as well as replacement and (or ) restoration of load-bearing building structures of a capital construction project, with the exception of replacing individual elements of such structures with similar or other elements that improve the performance of such structures and (or) restoration of these elements (clause 14 of article 1 of the Civil Code of the Russian Federation). A major overhaul of capital construction projects (except for linear facilities) is the replacement and (or) restoration of building structures of capital construction projects or elements of such structures, with the exception of load-bearing building structures, replacement and (or) restoration of engineering support systems and engineering networks. technical support for capital construction projects or their elements, as well as the replacement of individual elements of load-bearing building structures with similar or other elements that improve the performance of such structures and (or) restoration of these elements (clause 14.2 of Article 1 of the Civil Code of the Russian Federation).

As we can see, depending on the technical characteristics of the specific work performed under a particular contract and its result, such work can be characterized as a major or current repair.

From this we can conclude that “current repairs” and “major repairs” are not terms of the contract - names of works, but their classification characteristics, depending not on the will of the parties, but on the complexity of the work and the achieved result.

Note that this characteristic of the work affects their legal regulation, since the execution of work on major repairs of capital construction projects is regulated, among other things, by the provisions on construction contracts, paragraph 3 of Chapter 37 of the Civil Code of the Russian Federation (Article 740 of the Civil Code of the Russian Federation), while carrying out routine repair work - only under the general provisions on contracting, paragraph 1 of Chapter 37 of the Civil Code of the Russian Federation. At the same time, from Art. 431 Civil Code of the Russian Federation, Part 6, Art. 13 of the Arbitration Procedure Code of the Russian Federation it follows that an agreement is qualified, that is, it relates to one or another type of agreement based on its content, the essence of the relations regulated by it, and not on the basis of the name or terminology used in it (see, for example, the resolutions of the Federal Antimonopoly Service of the Moscow District dated 04.11. 2003 N KG-A41/8596-03, Thirteenth AAS dated 04/17/2013 N 13AP-5482/13).

Accordingly, if the work under the contract according to the technical criteria described above is a routine repair, the courts will not have the right to apply the rules on construction contracts to such a contract, even if the contract refers to major repairs.

Based on the foregoing, we can come to the conclusion that if the work under the contract is indeed a routine repair, but is characterized differently in the text of the contract, introducing appropriate changes into the contract will not constitute a change, but a clarification of its terms.

The texts of the documents mentioned in the experts’ response can be found in the GARANT legal reference system.

Major current repairs