Features of civil law regulation of the state defense contract in Russia.

Purge Anna Rolandovna PhD in Law Associate Professor at the Department of Private Law of Vladivostok State University 690014, Russia, Primorsky Krai, Vladivostok, Gogol str., 41, office 5502 a.purge@mail.ru Other publications by this author

The growth of military-political tension on the borders of the Russian Federation since 2014 clearly indicated the need to create such a mobilization economic model that would allow combining the advantages of a private economic initiative with the state planning necessary for the formation of a defensive economic strategy. The absence of such a model, to be put into effect immediately after the announcement of a special military operation or, in any case, after the announcement of partial mobilization, cannot but be recognized as an omission of domestic civil science. Experts note that even a year after the start of a special military operation, the army still has a shortage of many promising weapons, ammunition, special military ammunition and communications equipment, which implies a further expansion of the volume of state defense contracts in the coming years. This situation has led to a sharp (experts emphasize the need for unmanned aerial vehicles equipped with electronic equipment ^[1], as well as communications and encryption, thermal imagers ^{[2, p. 11]}, collimator sights, etc.) increase in the volume and assortment of the state defense order, followed by a surge in demand for labor resources and materials used in the production of weapons.

The further growth of the share of the mobilization industry in the Russian economy suggests, most significantly, the formation of a new civil law model of relations in it that would meet the principle of defense efficiency declared in the legislation. Obviously, such a model will differ from the existing civil law models of delivery and contract by extremely low profitability of the order, strict requirements for the time and quality of its execution, measures of increased responsibility of the supplier (contractor), perhaps even the right of state bodies (state customer) to prompt intervention in the production or even commercial activities of the contractor.

On the other hand, at the moment of a general reduction in demand ("compression of demand"), a defense order turns out to be attractive for business activity, since, due to the stability of demand and the reliability of the state as a customer (and as a payer), it allows you to build long-term relationships ("production chains") with other manufacturers, form (including train) stable working workforce.

Thus, the effectiveness, efficiency and continuity of military production depend on a properly constructed civil law model of the mobilization economy, which explains the relevance of the proposed study.

As noted above, the number of studies of the public procurement system, as it developed with the adoption of new legislation, is relatively small. These include the works of E.G. Chumarova (2015 – on the state contract for the performance of works ^[3]), E. Y. Matveeva (2016 – on contracts for work on energy services, i.e. on saving electricity ^[4]), I.G. Yakovleva (2017 – analysis of the legal regime of the request for quotations and the request proposals ^[5]), A.V. Yarosh (2018 – analysis of public procurement of medicines ^[6]).

The peculiarities of the legal regulation of many relations are caused not so much by the needs of a certain state policy, but by their very essence and the needs of their participants, which the legislator must take into account. The essence of relations in the field of public procurement has the following specifics in comparison with general business relations.

Firstly, the specifics of the legal regulation of military procurement are predetermined, first of all, by the targeted, military nature of the goods produced, the work performed and the services provided. However, Federal Law No. 275-FZ completely lacks an indication of the intended purpose of these objects: the legislator chose a different, purely formal way of determining the defense purpose of products: fixing it as a task established by the Government of the Russian Federation and offered for execution to suppliers (performers) – commercial organizations.

As follows from paragraph "1)" of Article 3 of Federal Law No. 275-FZ ^[7], the object of the defense order is divided into two groups:

- goods, works and services supplied "in order to ensure the defense and security" of the Russian Federation;

- products (as you can see, there is no indication of two groups of objects - works and services – already) "in the field of military-technical cooperation" of the Russian Federation and foreign states.

At the same time, with the beginning of a special military operation and a sharp increase in the demand for the objects of the first group, the volume of their orders and production increased significantly ^[8].

For civil law regulation, the military nature of the object of this agreement means several consequences at once:

- the limited nature of these objects in civil circulation, which most often means that it is impossible to sell them to another buyer;

- the need to comply with a whole system of requirements related to the observance of state secrets and commercial secrets, as well as compliance with the rules for handling dangerous (flammable, explosive, etc.) objects;

- specialized production, which implies not only the availability of the necessary means of production, but also qualified personnel (which the customer of such products should also check during the bidding period).

Thus, the defensive nature of the products significantly complicates the rules of bidding for its purchase (order), introducing a set of additional requirements for the seller (contractor).

Secondly, the customer under this agreement is primarily the state. According to paragraph "m" of Article 71 of the Constitution of the Russian Federation, defense and security, defense production, determination of the procedure for the sale and purchase of weapons, ammunition, military equipment and other military property, production of toxic substances - belong to the exclusive jurisdiction of the Russian Federation ^[9]. Therefore, the federal authorities or persons authorized by them always act as the customer of defense production (and the production of other objects related to military operations).

Among the subjects of the defense order are, first of all, the state customer in the person of:

- firstly, the federal executive authority, which is most often the Ministry of Defense of the Russian Federation (although defense orders are possible, for example, from the Federal Security Service, whose powers include the protection of the state border);

- secondly, the State Atomic Energy Corporation Rosatom, which provides supplies of products primarily for its special purposes. The legal status of the Rosatom State Corporation is established by a special federal law No. 317-FZ dated 01.12.2007 "On the State Atomic Energy Corporation Rosatom" (hereinafter – FZ No. 317-FZ) ^[10]. It determines the special legal capacity of the Corporation and its right to act as a customer under state defense contracts (Parts 6 and 6.1 of Federal Law No. 317-FZ). In particular, Part 6.1 of Article 6 of this Federal Law establishes that the Corporation performs the functions of the chief administrator of budget funds, the recipient of budget funds, the chief administrator of budget revenues, the administrator of budget revenues, the chief administrator of budget deficit financing sources, the administrator of budget deficit financing sources and the state customer of the state defense order in the established field of activity, the state customer of state programs Of the Russian Federation in the field of defense and security,

- thirdly, the State Corporation for Space Activities Roscosmos, which also provides supplies for its own high-tech tasks on the basis of a special legislative act on it ^[11]. According to paragraph 14 of part 1 of Article 14 of Federal Law No. 215-FZ of 13.07.2015, Roscosmos organizes the supply of goods and the performance of works (services) for state needs. In addition, paragraph "6)" of Article 11 of the same establishes that Roscosmos determines the main organizations for the standardization of rocket and space technology supplied under the state defense order. At the same time, Roscosmos approves regulations on these organizations. Thus, it acts at the same time as a body regulating space activities (adopting regulatory legal acts on space activities), including – making assignments in the field of space and military space needs - on the one hand, and the body performing the functions of a state customer for defense orders – on the other. As can be seen, if, as a general rule, the Government of the Russian Federation issues a state task for defense needs, and the Ministry of Defense of the Russian Federation implements it, then, as an exception, two state corporations simultaneously form tasks and act as a state customer for their implementation.

The fact that the state acts as the customer under this agreement, as well as at the same time the fact that it acts to ensure its most important need – defense capability – means the exceptional reliability of such a customer, complete, from the point of view of business risks, faith in him as a debtor for the obligations of payment for a defense order.

For example, attention is drawn to the tightening of the payment period for defense contracts concluded in the procurement system adopted by the state (for itself). From June 2022, this period should not exceed 30 days after the acceptance of the products delivered under this contract ^[12]. It is important that in this case the legislator uses the term "no more", which means the possibility of paying for defense contracts earlier than 30 days after signing the acceptance certificate, which, in turn, frees up the contractual possibilities of the parties in this case, and also allows the business entity to form new portfolios of government orders, which is impossible without their timely payment.

On the other hand, the participation of the state (at the federal level) in defense procurement, along with its reliability as a customer, creates risks of a different nature – corruption related to violations in the field of freedom of competition for government orders. In order to ensure fair competition between performers and, most importantly, for the creation of defense orders by the state on the best terms for itself, the procedure for concluding a defense order agreement receives a special, particularly detailed settlement, the essence of which is a tender or auction.

Thirdly, the legal regulation of relations in the field of defense orders is decisively influenced by its significance: since non-fulfillment of a defense order, for any reason, creates unacceptable risks for the defense capability of the state, and since the detailed procedure for determining the best performer does not guarantee full satisfaction of the customer's needs, the legislator has established extremely strict control measures over its execution at all stages and extremely strict civil penalties for its non-fulfillment. These measures include both a variety of operational measures and a variety of civil sanctions - from property to reputational.

In particular, the creation of the institute of special separate accounts, which are specified in Article 8.3 of the Federal Law of 29.12.2012 No. 275-FZ, is aimed at monitoring the implementation of the state defense order. Their peculiarity is that funds can be debited from them only if the identifier of the state defense contract is indicated in the order for debiting. The identifier, as follows from paragraph 13 of Article 3 of the Federal Law No. 275-FZ of December 29, 2012, is a unique number assigned to a specific state contract and subject to indication in all contracts, as well as in orders drawn up by state customers, head executors and executors when making payments under the state defense order as part of the accompanied transaction. Only some documents-the grounds for writing off funds specified in Part 2.1 of Article 8.5 of this Federal Law may not have this identifier, which is recognized as the only exception to the rule established by Part 1 of Article 8.3 of this Federal Law. At the same time, funds are also debited to a separate account (with a number of exceptions provided for in paragraph 2 of Part 1 of Article 8.3 of this Federal Law – such as payment of taxes, payment of electricity and goods at regulated prices, etc.). At the same time, such control seems excessively strict to business: "according to the reviews of the head executors and of course, the increase in the number of cases of refusal to conclude a contract is due to the unwillingness of suppliers to open special separate accounts and apply the separate account regime" ^[13]. It is possible that some administrative (financial and legal) barriers created by the legal regime of a separate account will be removed when a digital ruble is introduced in settlements with suppliers, facilitating control over the flow of funds in general. Experts have long noted its extensive capabilities. The main idea of using the digital ruble in the state defense order is that "the transition to treasury support ... will make it possible to switch from bank lending to treasury advance of state orders by means of special marking of digital currency as funds submitted for targeted use. This marking would prevent attempts to withdraw funds for inappropriate purposes" ^{[14, p. 123]}. However, legislation on the transition to the digital ruble is still being prepared by the State Duma of the Federal Assembly of the Russian Federation.

Operational impact measures include, for example, the right to withdraw from the contract and replace the contractor at any stage of execution. However, it should be noted that both of these measures are regulated by the general civil legislation and Federal Law No. 44-FZ dated 05.04.2013 ^[15], and not by the actual legislation on the defense order.

Along with the establishment of penalties (part 6 of Article 34 of the Federal Law of 05.04.2013 No. 44-FZ prescribes the customer only to send claims for the recovery of penalties, the penalties themselves are provided for directly in government contracts concluded with suppliers), the legislator establishes:

- firstly, the right to reduce them. According to paragraphs 1-2 of Article 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of the breach of the obligation, the court has the right to reduce the penalty. This rule is often practiced in courts, including in relation to suppliers for state defense orders. Thus, in one of the cases, the Ministry of Defense of the Russian Federation tried to recover from the supplier 32.3 million rubles in penalties for a four-month delay in the delivery of 152-mm shells, but the defendant, citing the "unstable foreign policy situation", obtained from the arbitration court a reduction in the amount of the penalty by a third (up to 20 million ^[16]);

- secondly, other rules for their application ("write-offs"). In particular, the Government of the Russian Federation has specifically established that the penalty for breach of contract, which the customer is obliged to write off from the supplier (for obligations to perform work – the contractor, and for obligations to provide services – the contractor), cannot be written off from him only in one case: if he was prevented from fulfilling the state contract by the increase in prices for building materials (which took place in 2020-2021 due to the spread of coronavirus infection) ^[17].

In addition, such a measure of reputational impact as inclusion in the Register of unscrupulous performers (reputational sanctions) is applied. The register of unscrupulous suppliers for defense orders is regulated by a special decree of the Government of the Russian Federation No. 1585 dated 19.12.2017 ^[18]. It should be noted immediately that inclusion in this Register is made on the basis of an act of the jurisdictional authority – a resolution on bringing to administrative responsibility for violating the requirements of the state defense order, however, it also has civil legal consequences associated with the subsequent restriction of the legal capacity of this supplier and, in particular, his right to conclude government contracts.

According to part 2 of Article 7.29.2 of the Code of Administrative Offences of the Russian Federation ^[19], the refusal or evasion of a supplier (contractor, contractor), occupying a dominant position in accordance with the legislation of the Russian Federation in the field of state defense order, from concluding a contract necessary for the execution of a state defense order, if the conclusion of such a contract is mandatory for the specified person, if these actions do not contain a criminally punishable act, - entails the imposition of an administrative fine on officials in the amount of thirty thousand to fifty thousand rubles; on legal entities - from three hundred thousand to one million rubles. At the same time, according to Part 6.1 of Article 6 of Federal Law No. 275-FZ, the conclusion of a contract is mandatory for an economic entity occupying a dominant position (the specifics of defining such a position in comparison with the general concept of a dominant position, as it is given in Article 5 of Federal Law No. 135-FZ of 26.07.2006 ^[20], are defined in Article 14 of Federal Law No. 275-Federal Law), provided that he has no reasonable economic or technological reasons for refusing to conclude a contract.

This register is maintained by the Federal Antimonopoly Service of the Russian Federation – as the body that controls the fulfillment of obligations in the field of defense orders. However, it seems that such a situation, which is quite acceptable in a peaceful period, is no longer acceptable in the conditions of mobilization measures. It should be noted that mobilization measures involve not only the mobilization of citizens for military service, but also, no less significantly, the mobilization of industry, which implies, among other things, the transfer of issues of control over the implementation of the defense order from the sphere of competence of civil administration bodies to the sphere of competence of military administration bodies. It seems expedient to remove all issues of control over the execution of the state defense order from the sphere of authority of the FAS of the Russian Federation and transfer them to a specially created federal state body (a less successful solution is to transfer these issues directly to the sphere of authority of the Ministry of Defense of the Russian Federation).

In addition, in conclusion, it should be noted that, unfortunately, the current legislation on defense orders does not provide for a mechanism for implementing the "supplier's initiative" ("contractor's initiative"). We are talking about the fact that the contractor is obliged to fulfill the state order exactly, not being able to make improvements to the order being executed – if only for the reason that any proposals for improvements often make it necessary to suspend the execution of the order, which, in turn, is not allowed by the contract and can even be regarded by the state customer as an attempt to evade the execution of the contract or even an attempt to sabotage its execution. Meanwhile, such a need, especially at the present time, often arises as follows, describing the ongoing work on the creation of defensive structures on the border with Ukraine (in the Luhansk People's Republic, in the Kherson and Zaporozhye regions – the so-called "Surovikin line"), experts note that "the line is being built clearly on the map (moreover, the old one) and in some places the terrain is simply not taken into account. That is, an anti-tank ditch and a line of concrete "dragon teeth" on the reverse slope (300 meters from the ridge) from the direction of the expected impact, trenches almost in the lowlands" ^[21], etc. Under such circumstances, based on the principle of good faith in the exercise of civil rights and performance of duties, the contractor would have to notify the customer about the inexpediency of building a defense line as it is established in the state contract, as well as the need to move the boundaries of the defensive lines in accordance with the conditions of the terrain, but this was obviously not done by the contractor.

Based on the above, it seems appropriate:

- to fix the contractor's obligation to raise the issue of changing the terms of the contract in cases where its performance clearly does not correspond to the goals and essence of the obligation performed by the contractor;

- to fix the procedural mechanism for the contractor's performance of the obligation to notify the customer about the inexpediency of the execution of the order or its part, or about the possibility of making changes to it aimed at improving the efficiency of its execution.