Attorney's view: how can IT companies terminate a contract with a toxic government customer
The IT company won a grant for the development of a training system. I started to execute and they began to merge it rigidly. What is the reason? How does the drain happen? And what risks does the developer subscribe to when entering the tender?
One modest FSBI ( federal state charitable institution ) has announced a tender for the creation of a distance learning system (“SDO”). Duration 5 months, price 4.5 million rubles.
The creation of the LMS took place in 4 consecutive stages: (1) analysis of the customer’s infrastructure, (2) the creation of the LMS, (3) implementation and warranty service.
Since TK was written by the state customer with “broad strokes”, the first stage was born in it - the analysis of the infrastructure. The analysis, more precisely, the anamnesis showed that the computing power of the customer’s hardware is clearly not enough to provide
What are the solutions?
The first way out: we correct TK by reducing the number of users simultaneously on the site. It sounds simple, but we have a government customer. We have 44 Federal Laws! Therefore, an attempt by a developer to agree on paper a change in TK is drowning in the depths of coordination.
The second way out (not Sheremetyevo and Domodedovo): to rent power from the data center. Only about 30 million rubles of rent per year. At about this point, the state customer understands that he was deprived, because he did not budget for the rent of data centers, and he can’t deviate from the TK. After all, TK is agreed with senior comrades and then ....
He chose the most faithful and ancient strategy in Russia to make the Contractor an extreme . While there was a discussion of a “bright future” and rental of data centers, the developer was waiting for the approval of the development platform and program layouts. Waited for weeks ....
I received an answer to all requests from the series: “Tomorrow” or “Why are you selling us a Cossack (1C Bitrix) under the guise of a Mercedes!” Many days after the commencement of work, the state customer issued: “The presented mock-ups / prototypes, calculation on servers and the declared development platform are of no interest. We are waiting for new offers, layouts and calculations. ”
At that moment, the question of the head of the state customer surfaced in the head of the general manager: “Is there a lawyer on staff?” And a negative answer. All. The puzzle has developed. Now “tomorrow” threatened to disrupt the state contract, i.e. court, fines under the contract and a ban on participation in state tenders.
The behavior of the state customer told me that he “painted” the image of a malicious violator of the contract, trying to cover up a soft spot. How to change this image?
Firstly , it is necessary to identify the actions and omissions of the state customer that impede / make impossible the execution of the contract , i.e. to convict of violation of Articles 328, 718 and 719 of the Civil Code of the Russian Federation.
Secondly , enter into an active written claim correspondence. We immediately sent the customer a notice of suspension of the provision of services in accordance with Article 719 of the Civil Code of the Russian Federation, a claim under the state contract. They described all the "sins" of the state customer: the lack of an approved technical design, and an unmotivated refusal to approve layouts, and lasting weeks of approval.
Thirdly, send a notice of unilateral non-judicial termination of the contract. It is important to remember the procedure for sending it to the state customer: by mail with a list of investments + to the email address. mail specified in the state contract or official e-mail. mail of the state customer.
The state customer began to gush with documents in response: complaints, acts of inspections, motivated refusals poured from the cornucopia. But this is not important. It is important that in them the state customer shows inconsistency in their position.
Fourth , file and win a lawsuit to declare the contract terminated. The court decision in your favor is a 100% guarantee against the risk of entering the RNP.
PS The fight is still ongoing. Soon the court awaits us ....
Managing Partner, Artilex
Lawyer Ivan Vasyukov
Part 1: the dark sides of TK
One modest FSBI ( federal state charitable institution ) has announced a tender for the creation of a distance learning system (“SDO”). Duration 5 months, price 4.5 million rubles.
The creation of the LMS took place in 4 consecutive stages: (1) analysis of the customer’s infrastructure, (2) the creation of the LMS, (3) implementation and warranty service.
Since TK was written by the state customer with “broad strokes”, the first stage was born in it - the analysis of the infrastructure. The analysis, more precisely, the anamnesis showed that the computing power of the customer’s hardware is clearly not enough to provide
“Uninterrupted functioning of the LMS with the simultaneous use of 10,000 users.”The customer adds fuel to the fire of a new introduction, which was not in the statement of work - the volume of training courses. Quoting the state customer: “Think, forgot about the volume to write?”. The valiant developer again peers into the infrastructure, does the recalculation and is horrified. Such a volume of courses multiplied by the number of users will lead to the collapse of the system.
What are the solutions?
Part 2: hellish bureaucracy and a half million dollar decision
The first way out: we correct TK by reducing the number of users simultaneously on the site. It sounds simple, but we have a government customer. We have 44 Federal Laws! Therefore, an attempt by a developer to agree on paper a change in TK is drowning in the depths of coordination.
The second way out (not Sheremetyevo and Domodedovo): to rent power from the data center. Only about 30 million rubles of rent per year. At about this point, the state customer understands that he was deprived, because he did not budget for the rent of data centers, and he can’t deviate from the TK. After all, TK is agreed with senior comrades and then ....
Part 3: government customer attacks
He chose the most faithful and ancient strategy in Russia to make the Contractor an extreme . While there was a discussion of a “bright future” and rental of data centers, the developer was waiting for the approval of the development platform and program layouts. Waited for weeks ....
I received an answer to all requests from the series: “Tomorrow” or “Why are you selling us a Cossack (1C Bitrix) under the guise of a Mercedes!” Many days after the commencement of work, the state customer issued: “The presented mock-ups / prototypes, calculation on servers and the declared development platform are of no interest. We are waiting for new offers, layouts and calculations. ”
At that moment, the question of the head of the state customer surfaced in the head of the general manager: “Is there a lawyer on staff?” And a negative answer. All. The puzzle has developed. Now “tomorrow” threatened to disrupt the state contract, i.e. court, fines under the contract and a ban on participation in state tenders.
Part 4: Attack Defense
The behavior of the state customer told me that he “painted” the image of a malicious violator of the contract, trying to cover up a soft spot. How to change this image?
Firstly , it is necessary to identify the actions and omissions of the state customer that impede / make impossible the execution of the contract , i.e. to convict of violation of Articles 328, 718 and 719 of the Civil Code of the Russian Federation.
Secondly , enter into an active written claim correspondence. We immediately sent the customer a notice of suspension of the provision of services in accordance with Article 719 of the Civil Code of the Russian Federation, a claim under the state contract. They described all the "sins" of the state customer: the lack of an approved technical design, and an unmotivated refusal to approve layouts, and lasting weeks of approval.
Thirdly, send a notice of unilateral non-judicial termination of the contract. It is important to remember the procedure for sending it to the state customer: by mail with a list of investments + to the email address. mail specified in the state contract or official e-mail. mail of the state customer.
The state customer began to gush with documents in response: complaints, acts of inspections, motivated refusals poured from the cornucopia. But this is not important. It is important that in them the state customer shows inconsistency in their position.
Fourth , file and win a lawsuit to declare the contract terminated. The court decision in your favor is a 100% guarantee against the risk of entering the RNP.
PS The fight is still ongoing. Soon the court awaits us ....
Managing Partner, Artilex
Lawyer Ivan Vasyukov
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