The state order has lost immunity – Newspaper Kommersant No. 193 (7394) dated 10/18/2022

The Supreme Court of the Russian Federation (SC) recognized that the budget money allocated under the state or municipal contract to the general contractor, in the event of its bankruptcy, is distributed among all creditors. The lower courts held that such funds were earmarked and immune and should only be directed towards debts owed to subcontractors under the contract. But, according to the Supreme Court, in order to withdraw property from the bankruptcy estate, there should be a direct indication of the law, which is not in this case. Such an approach, lawyers say, equalizes the rights of creditors, but also demotivates contractors.

On October 15, the Supreme Court published a decision on the distribution of budgetary funds under the contract in the event of bankruptcy of the general contractor who received this money.

According to the municipal contract dated September 29, 2017 LLC “Scientific and design and production company “Krasnodaravtodorservis”” pledged for 724 million rubles. to reconstruct a number of streets in Krasnodar. The customer (MKU “Unified Customer Service”) had to accept the results of the work and pay them monthly from the city budget through a special bank account. The contract allowed the involvement of subcontractors, and already in October 2017, the company hired SoyuzDonStroy LLC for part of the work. From December 5 to December 29, the subcontractor received 98 million rubles. But on December 21, insolvency proceedings were initiated against the general contractor, and in March 2021 they were declared bankrupt.

The bankruptcy trustee (CU) attempted to dispute the payments to the subcontractor as preference transactions because the firm had outstanding obligations to other creditors in December. But the arbitration courts of three instances rejected the claim.

According to the courts, the money could not be distributed among other creditors, since it was allocated from the budget specifically for the execution of the municipal contract and is not the property of the debtor. The KU challenged these decisions in the Supreme Court, and the case was referred to the Economic Collegium.

The Supreme Court noted that “disagreements boil down primarily to resolving the issue of the right of the company’s creditors who did not participate in the execution of the contract to count on these funds in principle.” The bankruptcy estate of the debtor, clarified the Supreme Court, includes all its assets, except for those that are expressly excluded by law (for example, funds from SRO compensation funds, property withdrawn from circulation, etc.). For money allocated from the budget for the execution of a state or municipal contract, such immunity is not established.

In addition, the board explained, after the receipt of budget funds by the general contractor, they “reached their intended purpose”, after which they “became the property of the company”. The obligation of the bankrupt to transfer this money to the subcontractor “was of a civil nature and did not protect them from the claims of other creditors.” As a result, the Supreme Court sent the dispute for a new trial to verify the calculation of the amount to be recovered and to resolve the issue of the consequences of the invalidity of the transaction.

Gleb Gavrilin, senior lawyer at Gurichev, Malinin & Partners, agrees that the establishment of executive immunities is within the competence of the legislator, not the law enforcement officer.

The position of the Supreme Court, in his opinion, is justified and “helps reduce the number of abuses in bankruptcy procedures.” A different approach “in fact, would discredit the institution of bankruptcy and would contribute to the consolidation of inequality among creditors,” Mr. Gavrilin believes.

The law really does not separate the funds allocated under government contracts, admits Aleksey Kostovarov, partner at Liniya Prava. At the same time, he sees “rational grain” in the concept of “the transit function of the general contractor for the distribution of budgetary funds between subcontractors”, especially when it comes to the state defense order.

Now, Mr. Kostovarov believes, the “already high-risk” area of ​​state orders adds to subcontractors the additional threat of not receiving payment in the event of bankruptcy of the general contractor, and “they will think many times before agreeing to a contract.” This, the lawyer believes, complicates the implementation of the state order, on which a large part of the Russian economy is built. According to Alexei Kostovarov, the situation needs to be regulated at the legislative level.

Anna Zanina