As a result of public procurement, the customer signed a contract for the purchase. However, in practice, he/she purchased the goods less than the terms of the contract. Is it necessary in such circumstances to conclude an additional agreement to reduce the amount of the contract and the volume of procurement?
Yes, it is. The purchase contract is concluded by the parties according to the norms of the Civil and Commercial Codes of Ukraine (hereinafter – Civil Code and Commercial Code), taking into account the peculiarities defined by the Law of Ukraine “On Public Procurement” dated December 25, 2015, No. 922-VIII (hereinafter – Law No. 922).
Significant terms and conditions of the purchase contract cannot be changed after it is signed, until the parties fulfill their obligations in full. Law No. 922 provides for certain exceptions for this rule, among the exceptions – reduction of purchases, in particular, taking into account the actual amount of customer’s expenses (para. 1 of para. 4 of Art. 36 of Law No. 922).
If the customer needs to make amendments to the contract, he/she must do this in the manner determined by the Civil Code and Commercial Code, namely:
- if the contracting party considers it necessary to change or terminate the contract, it sends proposals to the other party under the contract. The party to the contract, which has received such an offer, informs the other party of the results of its consideration. The Commercial Code allows to consider such a proposal for 20 days;
- if changes have been made to the contract, the obligations of the parties change in accordance with the changed conditions regarding the subject, place, terms of execution, etc. – from the moment when the parties reached an agreement on the change of the contract, unless otherwise specified by the contract or does not determine the nature of its change (paras.1, 3 of Art. 653 of Civil Code).
The amendment or termination of the contract is to be made in the same form as the contract, which to be amended or terminated.
Consequently, the parties to the contract have the right to make amendments to the document. The customer may take advantage of such a right and reduce the volume of procurement on the basis of para. 1 of sec. 4 of Art. 36 of Law No. 922, if the contract provides for the procedure for such changes.
If the amendments are made to the contract, then the notice should be made public on ProZorro. The law provides for three days to do this from the date of the change.
