The Ministry of Construction, the Ministry of Finance and the Federal Antimonopoly Service (FAS), in the context of the continuing rise in prices for building materials, informed the regions about the possibility of revising government contracts if such a rise in price entails the impossibility of their execution. The appearance of the letter is explained both by the practice that has developed not in favor of the contractors, and by the fact that the bill with such changes was not ultimately agreed upon. Market participants believe that the letter of regulators will not completely solve the problem of fulfilling obligations, since only 10% of contracts concluded during the year fall under the requirements specified in it.
The letter from the Ministry of Construction, the Ministry of Finance and the Federal Antimonopoly Service explains to the regional authorities the procedure for changing the “essential conditions” of government contracts (this includes the price). Let us clarify that the need to adjust contracts arises due to the fact that with the rise in prices for building materials (in May, prices for them increased by 16.4% on an annualized basis), contractors building objects under the state order suffer losses – since the price of such contracts is determined for the entire period of their execution. According to the estimates presented earlier by the Ministry of Construction, with the volume of state investments in capital construction facilities at 846 billion rubles. in 2021, the industry risks losing 42 billion rubles only due to the rise in metal prices.
In their letter, the departments explain that the law on the contract system (44-FZ) allows for the possibility of changing the essential conditions of the contract by agreement of the parties – in the event of circumstances beyond the control of the parties that entail the impossibility of its execution.
A written justification for such a decision is also required.
Note that such an explanation can be viewed rather as providing contractors who have encountered difficulties with additional arguments in a dispute with customers. In practice, a change in prices is not considered an unforeseen circumstance – the courts often proceed from the fact that, entering into a contractual relationship, the parties must predict the economic situation, and therefore cannot exclude the possibility of a rise in prices.
As noted in the National Association of Builders (NOSTROY), the explanation does not completely solve the problem of the growth in the cost of building materials. According to the data of the association, over 90% of the contracts were “terminated” in a year with a term of less than one year and a cost of less than 100 million rubles – respectively, they do not fall under the criteria listed in the letter. “In this regard, it is necessary to study the issue of amending the 44-FZ,” NOSTROY believes.
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Earlier, just such a bill was developed by the Ministry of Construction, proposing to provide in 44-FZ the possibility of revising the terms of a contract concluded for at least a year, in the event of an increase in prices by at least one position – if this leads to an increase in the cost of construction by more than 5% and to a related this is the impossibility of fulfilling the contract. However, this initiative was not supported by the Ministry of Finance. As explained to Kommersant in the department, the introduction of additional changes to 44-FZ is not required – the measures provided for by law allow you to change the prices of contracts if their further execution is impossible, including due to an increase in prices for materials. The minimum size of the contract price, added in the Ministry of Finance, while it can be changed by the decision of the government.
The Ministry of Construction reports that they are working to stabilize prices in the market. In particular, monitoring is carried out to make operational decisions in order to prevent an unreasonable increase in prices for construction resources. In addition, the department adds, “the elaboration of solutions in terms of possible actions with a significant increase in prices for building materials continues.”