1. **Subject of the dispute:** Recovery by a contractor from a municipal organization of indebtedness for additional construction works actually performed, which were not provided for by the initial contract, but were performed based on verbal agreement and adjusted design documentation.
2. **Court’s arguments:**
– The court emphasized that in cases regarding the recovery of payment for construction works, courts must verify not only the fact of their performance but also the compliance of such works with the design and estimate documentation.
– The Supreme Court noted that the courts of lower instances did not take into account the mandatory provisions of the Law “On Public Procurement,” which limit the possibility of amending material terms of a contract (in particular, the price) after its signing.
– The court stressed that any amendments to a procurement contract that significantly differ from the initial terms may be considered a new contract execution, which violates the principles of transparency and fair competition.
– It is significant that the courts failed to provide a proper assessment of the customer’s arguments regarding the impossibility of paying for works that were not provided for by the tender documentation and the contract.
– Furthermore, the courts did not clarify why there is a discrepancy between the total contract price and the amount actually paid, and how this relates to the cost of the claimed additional works.
– The Supreme Court pointed to the necessity of assessing the motives for the customer’s refusal to sign the certificates through the prism of budget legislation and special rules on public procurement.
– The Supreme Court in this decision reaffirmed its position regarding the impossibility of uncontrolled increases in the contract price by more than 10% and emphasized the necessity of adhering to the principles of public procurement, rejecting a practice that would allow contractors to recover funds for additional works by bypassing procurement procedures through references to “actual performance.”
3. **Court decision:** The Supreme Court set aside the decisions of the courts of lower instances in the part concerning the satisfaction of the claim and remanded the case for a new trial to the Commercial Court of Kharkiv Oblast.
