Establish criteria for evaluating applications. On what criteria the customer chooses the supplier. Types of application evaluation criteria: cost and non-value

What to do when it turns out: the entrepreneur or company has done their job in good faith, and the other side, the customer, refuses to pay. Lawyer Julia Knyaz explains step-by-step actions to return the debt.

- Not the most pleasant aspects of the business are creeping out today. It's me that many entrepreneurs are faced with a problem: they completed the work, but did not receive money for it. Or payment is promised, but comes with delays.

I'll tell you what to do in such a situation.

Julia Prince
Lawyer practicing advocacy individually

Algorithm for working with a debtor

Yes, you can call your debtor, meet. Try to negotiate. But often this is ineffective. I will tell you about the main actions for collecting debt. Of course, if funds are returned to you at the initial stages, then you do not need to follow the next steps:

1. Try to sign a reconciliation-calculation act with the debtor, which will be a confirmation of the debt.

Try to sign the act of completed work.

2. Send a written claim asking for a calculation. It is in free form. The claim must:

• Indicate that in case of non-payment, interest will be charged for the use of other people's funds at the rate established by law (the amount of interest is determined by the refinancing rate). Or - in the amount determined by your contract (pay attention to this when drafting it)
• Note that other costs of debt collection (expenses for payment of the state fee, legal assistance) will also be recovered from the debtor

An executive inscription is a debt collection document issued by a notary, and which is subject to execution - by analogy with a court order. This is the most fast way debt recovery. It can be obtained by contacting a notary public if you have:

• Agreement signed by both parties
• Certificate of completion
• Act of reconciliation of accounts
• Response to a claim in which the debtor acknowledges the amount owed

If you do not have all the documents on hand, you need to apply to the economic court and start initiating a lawsuit or writ proceedings.

4. Claim or writ proceedings: what is the difference

When writ proceedings it is necessary to apply for the initiation of writ proceedings, attaching documents confirming the debt: copies of the contract, acts, as well as postal receipts, which show that claims were sent to the debtor.

You should apply for debt collection in writ proceedings if you have: only an agreement, an act and a claim sent without an answer. Or a response to a claim in which the amount of the debt is partially recognized.

The application is considered without holding court sessions and participation in them of the parties. Term of consideration of the case: no more than 20 days.

When action proceedings a statement of claim is filed, and similar documents are attached to it. It should be contacted if the debtor:

• Declares that he will dispute the amounts owed
• He didn't sign the deeds
• He is not satisfied with the quality of the work performed (service rendered)

It will be necessary to prove in court that the debtor is obliged to pay for your work (service). Court hearings are held in which both parties participate.

Term of consideration of the case: no more than 2 months

For the acceptance of an application and a claim for consideration, a state fee must be paid.

Minimum bet duties in writ proceedings is 2 base units (now it is 21 rubles), if the amount of debt is less than 100 base units. Maximum - 7 base units.

IN litigation the calculation of the state duty is somewhat more complicated and its size is larger. The minimum rate in action proceedings is 25 base units if the amount of debt is less than 100 base units. If higher, the maximum rate is determined in the ratio of 1% or 5% of the amount owed.

What to look for at the stage of concluding a contract

If the debt collection procedure has reached the court, it may turn out that there are violations in the service agreement.

For example:

• Its subject is not clearly defined - what work should be done
• No exact time frame for completion of work
• The price for the work or other conditions depending on the category of the contract is not indicated

In this case, the debtor can take advantage of the situation and challenge the conclusion of the contract. To receive money for the services performed, it will be necessary to re-apply to the court. And collect the debt not under the contract - but as the amount of unjust enrichment.

I will give an example. In practice, I was faced with a situation where a contract was signed between the parties. Under its terms, the entrepreneur completed the agreed amount of work. However, when the time came for settlements, the second party declined to sign the certificates of completion. Didn't respond to complaints.

And since there were no acts of work performed, the entrepreneur was forced to file a claim with the economic court. During the litigation, the debtor indicated that the terms of the work contract had not been agreed upon: the volume and cost of work had not been determined.

Since the document was drawn up incorrectly, the court recognized such an agreement as not concluded and refused to recover the amount.

After that, the entrepreneur who provided the service had to re-apply to the court with new demands for the recovery of the amount of unjust enrichment. And to prove how much work he did and that it was of proper quality. This required the involvement of experts, i.e. additional costs.

Conclusion: you need to remember that every step in a business must be thought out, starting with the conclusion of an agreement and the execution of documents for the performance of work.

(Perm), a leading specialist in the practice of commercial contracts, tells what to do when a customer refuses to pay you, and explains how not to get into such an unpleasant situation.

The company turned to a bureau that writes and accompanies the publication of texts. The parties entered into a service agreement. Subsequently, the company did not return the transfer-acceptance certificate signed on its part and did not pay the invoice issued by the bureau, citing the fact that these documents were sent to the wrong address and the wrong person.

Such situations are familiar to many who are engaged in the provision of various kinds of services, be it, and many others. It is unlikely that there will be at least one contractor who has not encountered situations where the customer either does not want to pay in full for the services rendered, or completely refuses to do so.

How can the contractor, firstly, prove to the customer (and possibly the court) the fact of the provision of services, and secondly, insure himself against the occurrence of such situations in the future?

Services are a more complex category than goods. They cannot be measured, touched, they are not stored in a warehouse and are not used in production. Hence all the difficulties. The fact of the supply of goods is much easier to prove than the fact of the provision of services. But when one side refuses to pay for the service because it considers it to be of poor quality or not performed, and the other insists that everything is in order and demands payment, it can be very difficult to figure out who is right and who is wrong.

How to get money from a customer?

When the customer does not pay, the contractor needs to protect his rights. If the parties to the agreement are participants in business transactions or other economic activity, then the recovery Money for payment of services in court will require compliance with the claim procedure (part 5 of article 4 of the Arbitration Procedure Code Russian Federation). What does it mean? You can apply to the court after thirty calendar days from the date of sending the claim (requirement) to the customer, unless other terms and procedures are established by law or contract.

Therefore, resolving issues with a customer who does not pay for the services rendered, start with a claim. Take the preparation of the claim seriously, if possible, involve a specialist, since the document will be the basis for a future claim. When submitting a claim, make sure that the customer's address ( legal entity) corresponds to the data of the Unified State Register of Legal Entities.

If the contract provides for an arbitration clause, that is, consideration of the case by an arbitration court, then follow this procedure.

You can also offer the customer to agree on a mediation procedure - a way to resolve disputes with the assistance of a mediator based on the voluntary consent of the parties to achieve a mutually acceptable solution. But this requires the interest of both parties.

In any case, the collection of payment for services under the contract is a costly procedure both in terms of money and time. Therefore, it is better to insure yourself against such situations and minimize the risks. A well-drafted contract will help with this. It depends on this how easy it will be for the contractor to prove to the customer (and, if necessary, to the court) that the services were provided in full.

Everyone who has ever watched legal films and TV series, “Force Majeure”, for example, surely remembers such scenes: many lawyers sit in a negotiation, where they read the draft agreement for a long time, carefully and non-stop, point by point, double-check the wording and get rid of from phrases that can be read and understood in different ways. But such a thorough approach in all respects can afford (and do) large companies.

And what about the average representatives of medium and small businesses? Typically in the state small company there is no lawyer. Therefore, the preparation of documents and the drafting of contracts falls on the shoulders of the director or head of the sales department.

They often do it on the basis of templates and do not delve into the smallest details in the way that a person with a legal education and work experience would.

Remember that a contract is like a rule traffic on which you ride! If it is drawn up in such a way that each party clearly understands the subject and scope of their obligations, that is, clearly, thoughtfully and in detail, then it will be easier for you to work, and it will be easier for the customer to evaluate the work you have done and ultimately pay for it. Often, drivers look into the rules of the road when a fine is imposed on them or an accident occurs. The situation is similar with the contract - the parties turn to the document and begin to study it only when disputes arise.

How to draw up a contract?

Make your own contract

If you use templates, then adapt them to your specific agreements with the customer. Define in the contract the types and content of services that you, as a contractor, will provide. For example, you can agree technical task or other similar document and issue it as an annex to the contract.

Agree with the customer on the criteria for the quality of services by which he will evaluate and accept the work. They should be as objective and verifiable as possible, otherwise you can get into a situation where the customer will delay payment, citing the fact that the services do not meet the declared quality. Model the order of acceptance of services and their payment in the contract - it should be understandable to the parties and not allow unmotivated refusal of the customer.

case

Executor: designer

Customer: non-profit organization

Subject of the agreement: creating a corporate identity

A non-profit organization approached a designer for help in creating a logo. In addition to the contract, the contractor sent a detailed technical assignment, which the customer filled out. When the customer did not like all the developed versions of the logo, the contractor raised the terms of reference and asked for an explanation in which part of the work performed did not meet the terms of reference. The customer was unable to give a reasoned answer. All variants of the logo corresponded to the TOR. Although new inputs began to appear at the stage of agreeing and accepting services from the NCO, the work of the contractor was paid in accordance with the terms of the contract, even though the customer did not use the logos created by the designer.

Include in the contract a condition that the act of rendering services is considered automatically signed by the customer in case he does not sign it within the period established by the contract.

Thus, if the customer did not sign the act and at the same time did not submit reasonable objections within the period stipulated by the contract, the act is considered signed by the customer, and the services are considered accepted by the customer. The task of the contractor is to comply with the terms of the contract for its part, as well as correctly and in a timely manner send to the customer the act signed on its part, the invoice and other documents that are provided for in the contract (for example, a report on the provision of services). Arbitrage practice supports this position.

Important! We recommend adding the following paragraph to the section “Procedure for the delivery and acceptance of services”: “The customer undertakes, within 2 working days from the date of receipt of the service provision certificate, to consider, in the absence of objections, sign and send the signed service provision certificate or a reasoned refusal to the Contractor service acceptance. If the Customer does not send a signed act of services performed or a reasoned refusal to accept services to the Contractor within the specified period, the services under this agreement are considered to be rendered with high quality and accepted by the Customer in full.

In contracts, you can not make the payment for services dependent on the signing of the act, or not provide for the signing of the act at all.

Provide in the contract the obligation of the contractor to provide a report on the services rendered (monthly, quarterly, etc.).

Detailed accounting of the contractor's activities will help subsequently confirm the fact of the provision of services.

case

Executor: PR company

Customer: financial institution

Subject of the agreement: provision of PR services

On a monthly basis, the contractor sent a report on the work performed, an invoice for the provision of services and an act to the customer. The customer, as a rule, paid bills and signed acts late, but several months in advance. This suited everyone until the parties decided to terminate the contract. The customer considered that services were not provided over the past few months. But the reports, invoices and acts sent to him (albeit not signed by the customer) spoke of the opposite.

For legalization electronic document management between the parties, define in the contract the order of correspondence by channels electronic communications: coordinate addresses Email, messenger accounts and so on.

Specify that when information and documents are exchanged through the indicated channels, they are recognized as originating from the sending side and received by the addressing side. This presumption will help you if the customer begins to claim that he did not receive the documents or that they were received by an unauthorized person.

Important! The court recognized email correspondence as appropriate evidence in the case, since the e-mail addresses used for correspondence were agreed by the parties in the service agreement, despite the fact that the defendant denied the fact of correspondence.

To avoid the customer's refusal to pay for services due to an improper signature on the act of services rendered, provide in the contract for a specific circle of persons authorized to sign the act.

Also attach a duly certified power of attorney to the act.

What other documents, besides the contract, are important?

If negotiations with the debtor are at an impasse, claims sent to him do not help, then the next step is to go to court. And here, more than ever, the following statements are appropriate: “the devil is in the details” and “little things do not play a decisive role, they decide everything.”

To prove the fact of the provision of services, you can use any written documents related to this process:

an agreement with a third party that was involved in the provision of services;

logbook;

acts of taking readings of metering devices;

waybills, bills of lading;

correspondence of the parties certified by a notary public;

power of attorney issued to the contractor;

the material result of the provision of services (conclusions, petitions, court decisions, evaluation reports, business plans, photo reports).

Together with other evidence already in court, the following can also serve:

detailing the plaintiff's phone calls with the display of incoming and outgoing calls to the defendant's phone number;

video recordings confirming the interaction of the parties;

witness's testimonies.

Due to the difficult economic situation in our country, people are less likely to pay their bills. You can conclude a contract and fulfill your obligations in full, but never wait for payment. No one is immune from such cases, but everyone can cope with them.

To bookmarks

You should act as follows:

1. Get close to the deer. The closer you are when making a shot, the more chances you have to hit the target. If the counterparty does not pay, contact him and find out the reason. Perhaps an error has occurred, or he is dissatisfied with the quality of the goods, delivery time, etc. In this case, the situation can be solved and the well-deserved money can be received.

2. Write a claim. If the customer evades the fulfillment of obligations or does not respond at all, it is worth making a formal claim. Such a claim is an official document and is drawn up in a form indicating: what date the contract was signed and the number of the contract, what obligations you fulfilled and to what extent, whether the obligations were fulfilled on time. Next, indicate the obligations of the customer: to pay a certain amount under the contract, within a certain period of time. Indicate that, contrary to its obligations, the customer did not pay under the contract. After that, ask the customer to pay the debt under the contract, and set a deadline for fulfilling obligations. Specify the details of the current account to which the payment should be made. Sign the claim, affix the company's seal and send it to the customer's address specified in the contract.

3. Prepare a statement of claim. In practice, the claim is more formal. If the claim is not answered, there is a right to appeal to the court. A written claim can be taken as the basis of a statement of claim. Next, you need to justify your requirements with the norms current legislation and copies of the contract and all documents relevant to the case. In order to correctly refer to the articles of laws and comply with all the requirements for a statement of claim, it is recommended to contact a lawyer. If the claim is drawn up incorrectly, the court will not accept it, and if it accepts, it may refuse the requirements.

4. Sign the statement of claim and submit it to the arbitration court. The claim is filed at the location of the customer. After the appointment of the meeting, it is necessary to appear in court and convince the judge that he is right. If successful, the customer will be charged the amount of the debt, and penalties in your favor.

5. Get a writ of execution and present it to the bank. After the entry into force of the court decision, you can get a writ of execution for the forced collection of funds. Performance list along with the application for collection is presented to the bank where the customer has accounts. If the customer has money in his account, the amount won will be transferred to you within three days.

Ultimately, if the customer refuses to pay the debt under the contract, it is worth making efforts to resolve the dispute out of court. Otherwise, the battle will drag on for many months and it will be extremely difficult to win it without the support of a lawyer.

Often, already at the stage of execution of the state contract, the parties violate their obligations. A typical violation on the part of the state customer is the delay in payment. Suppliers stand up for their rights. Let's see what decisions the courts make in such cases.

Violation of the deadlines for the fulfillment of financial obligations

The supplier has delivered the goods to the customer in accordance with the contract, and the customer is slow to pay, trying to delay the fulfillment of his obligations as much as possible. The supplier applied to the arbitration court to defend his rights and receive money.

The fact of delivery of goods to the state customer under a contract in the amount of 6,011,365 rubles. confirmed by waybills and the act of acceptance and transfer of goods. Thus, the obligations of the customer to pay for the goods received are documented.

In turn, the customer committed a violation of the monetary obligation to pay the debt. Therefore, in accordance with the contract, the supplier claimed a penalty for late payment for the goods.

In addition, according to the contract, the term for the return of the security is determined within 10 days from the date of delivery of the goods, but not earlier than the expiration date of the contract.

At the same time, it follows from the case file that the supplier fulfilled the delivery obligation on 04/24/2014, which is confirmed by the act, the contract expired, but the customer returned the security only on 06/09/2014.

Thus, the supplier has also filed claims for the recovery of a penalty fee for late return of the collateral.

The court satisfied all the requirements of the supplier (Resolution of the Eighteenth Arbitration Court of Appeal dated January 20, 2015 No. 18AP-14989/2014).

Wrongful refusal to pay

A contract was concluded between the state customer and the supplier organization for the supply of goods for federal needs.

The goods were delivered in accordance with the terms of the contract, there are no complaints about the quality, the acceptance certificates were signed.

However, the customer refused to pay for the goods, referring to the reduction in the limits of budgetary obligations and tried to terminate the contract unilaterally.

At the same time, the customer did not previously notify the supplier of a change in his financial capabilities and did not suspend the acceptance of the goods.

FAS believes that the actions of the state customer are unlawful. Unilateral refusal to fulfill obligations is possible only in case of a material breach of the contract by the other party.

Moreover, if the act government agency on reducing the limit of budgetary obligations was adopted after the acceptance of the goods, the customer is not entitled to refer to this circumstance as a basis for refusing to pay.

From the materials of similar court decisions, we can conclude: if the state customer cannot prove significant violations by the supplier of the state contract related to the quality of the supplied procurement object, then a unilateral refusal to pay cannot be considered lawful.

The reference of the customer to the fact that the limit of budgetary obligations was reduced for him cannot serve as a basis for refusing the requirements of suppliers - the amounts of payment for the goods delivered, the result of the work performed and the service rendered, as well as late fees are collected from the customers (Resolution of the Federal Antimonopoly Service of the Moscow Region dated September 16 .2011 No. А40-73055/10-29-613).

On practice arbitration courts agree with such conclusions of the FAS.

Linking the payment period to the receipt of funding from the budget is illegal

The customer notified the supplier that he would pay for the delivered goods when he could. Funding from the budget was delayed indefinitely. The supplier was forced to go to court.

From tender documentation and the text of the contract for the supply of goods, it follows that the payment term for the delivered goods is due to the receipt by the customer of financing from the budget.

Attention! The customer is not entitled to condition the payment term on the receipt of financing under the relevant budget item, since such a condition cannot be an agreement on the payment term.

The Federal Antimonopoly Service of the West Siberian District, in its Decree dated December 24, 2009 in case No. A27-5495 / 2009, notes that the receipt of funds from the budget to finance payment for work performed under a municipal contract is not an event that must inevitably occur, which took place in this case , and is not within the meaning of Art. 190 of the Civil Code of the Russian Federation by agreeing on the payment term.

The Second Arbitration Court of Appeal in its Ruling dated September 29, 2010 in case No. A31-3303/2010 indicates that an obligation arising from a municipal contract must contain a specific condition on the payment deadline for the goods.

The supplier's requirements were met.

conclusions

We have reviewed typical situations when the customer clearly violates the requirements of the law to fulfill its obligations under the contract. Unfortunately, this is a fairly common practice.

In such cases, arbitration courts unambiguously take the side of the supplier if he submits supporting documents indicating that he, for his part, fulfilled the obligations under the contract.

Whether a register of unscrupulous customers, which lawmakers have been talking about for a long time, will be created, time will tell. Such a register would help public procurement participants to avoid unscrupulous customers already at the stage of preparation for participation in public tenders. In the meantime, you can monitor arbitration practice in the field of public procurement and communicate with colleagues at industry meetings. This will facilitate the work of suppliers, contractors and performers in the field of public tenders.

Olga Stepantseva,
Expert Circuit.Schools

You will learn more about the execution, amendment and termination of the state contract from the video recording of the webinar “Peculiarities of execution and termination of the state contract. Conducting an examination ”, Kontur.School, lecturer - tender expert O.A. Birulya.

About participation in contract system find out on

The terms and procedure for payments are established by Part 13.1 of Art. 34 44-FZ. This rule states that the state customer is obliged to pay for goods, work or services within a period not exceeding 30 days from the date of acceptance of the entire contract or a separate stage.

At the same time, payment for SMP under 44 FZ, that is, contracts (their individual stages) concluded as a result of tenders held only among small and medium-sized businesses or SONCO, must be made within 15 working days (part 8 of article 30).

For some transactions under 44 FZ, payment under the contract may occur in a different order. In particular, in Part 13.1 of Art. 34 of the Law on the contract system, it is established that the government has the right to determine a different payment procedure, but only to ensure the defense capability and security of the state.

As for procurement under 223-FZ, paragraph 14 (3) of government decree No. 1352 dated 12/11/2014 states the following:

if the procurement is carried out among any of the procurement participants and the winner is a small and medium-sized business entity, then the payment term for the fulfilled obligations cannot exceed 30 calendar days from the date of signing the acceptance documents.

Prosecutor's office

Moreover, it is more reliable to apply immediately to the Prosecutor General's Office, and send a copy of the complaint to local divisions.

Secondly, OFAS. This body is authorized to conduct unscheduled inspections and, as a result, initiate and consider cases under Art. 7.32.5 of the Code of Administrative Offenses (violation of the terms of payment under government contracts).

For a single failure to perform duties on executive the state buyer may be fined from 30,000 to 50,000 rubles.

The result of the consideration of such disputes by the court or the FAS may be one of the decisions:

1. Appointment of administrative punishment.
2. Termination of proceedings in the case of an administrative offense.

Thirdly, the body of the internal financial control that every customer has. According to this authority, it checks the progress of the contract, so you can also send a complaint here.

Defense organizations

A number of organizations that protect the rights and interests of entrepreneurs can also catalyze the receipt of funds through government contracts. The most prominent representative is the Commissioner for the Rights of Entrepreneurs under the President of the Russian Federation. The Ombudsman is attracted by the FAS, for example, as a third party who does not make independent claims regarding the subject of the dispute.

Public organizations. This includes, for example, the official website. There are no guarantees of victory here, but there are chances.

There are also business organizations who provide assistance to those businessmen who have a membership card. If there is such an opportunity, it makes sense to use it.