This situation arises frequently: a supplier delivers goods that exceed the contract specifications, and the contracting authority refuses acceptance on the grounds that the goods formally do not conform. Who is right?
Why a Discrepancy Arises
The reasons vary:
- The specified goods are unavailable at the time of shipment (discontinued, out of stock)
- The supplier relied on online specifications that turned out to be inaccurate
- The manufacturer changed its production process, altering the labeled specifications
None of these reasons, standing alone, obligates the contracting authority to accept the goods. However, the law does permit a substitution — subject to three conditions.
Three Conditions for Delivering Improved Goods (Part 7, Article 95 of Federal Law No. 44-FZ)
Condition 1: Contracting Authority Consent (Mandatory)
The supplier may not simply deliver a superior product and inform the contracting authority after the fact. Prior written consent must be obtained and formalized in a supplemental agreement to the contract.
This position was upheld by the Arbitration Court of Rostov Oblast (case No. А53-7539/2014): the court sided with the contracting authority, holding that an institution cannot be compelled to accept goods not conforming to the contract by name — even if they are superior.
The Ministry of Economic Development has taken a different view, suggesting that a supplemental agreement is not required (letter dated June 10, 2015, No. Д28и-1691). However, it remains unclear what the contracting authority must then place in the contract registry. In practice, delivery without written consent carries risk.
Condition 2: The Improvements Must Apply to Specifications Listed in the Contract
Substituting on specifications not mentioned in the contract violates the rules governing modification of contract terms. A contracting authority official who unlawfully modifies contract terms faces a fine of 20,000 rubles (Part 4, Article 7.32 of the Code of Administrative Offenses).
It is also impermissible to simply change the trademark without modifying the specifications — this too constitutes a violation.
Condition 3 (Contested): The Specifications Must Conform to the Procurement Documentation
The Ministry of Economic Development articulated this position in letters dated September 5, 2016 and October 3, 2016, but reversed course in its letter dated November 8, 2016, No. Д28и-3079. Some contracting authorities continue to follow the earlier practice — account for this in advance to avoid disputes.
Consequences of an Unsanctioned Delivery
In recent practice, a contracting authority is required to unilaterally terminate the contract if it discovers that the goods do not conform to the procurement documentation requirements, or that the supplier provided false information (Clause 1, Part 15, Article 95).
Following termination: placement in the Registry of Unscrupulous Suppliers (RNP) (Part 16, Article 95), plus a penalty for improper performance (Part 8, Article 34).
Practical Recommendation
If there is any doubt about whether the goods conform to the contract — do not rush shipment. Contact the contracting authority in advance with a written request to approve the substitution. This takes a few days but protects you from being placed in the RNP and from months of litigation.
Has the contracting authority refused acceptance of your goods or threatened unilateral termination of the contract? Contact us — we will assess the situation and identify a path forward.