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The conflict of the client and contractor because of SAP implementation came the Russian Federation to the Supreme Court

Customers: Danaflex

Polygraphic activity

Product: SAP ERP
На базе: SAP NetWeaver

Project date: 2018/01  - 2019/04

The implementation project of an enterprise management system in the large Russian producer of packaging Danaflex failed. Danaflex requires from SAP CIS and her partner - TeamIdea company - compensation of losses in the amount of 40.6 million rubles. In turn, TeamIdea tries to collect through court about Danaflex complete payment of the rendered services - 11 million rubles in addition to already transferred 40.6 million rubles. TAdviser watches closely trials and arguments which sound from each party.

Danaflex tries to return 40.6 million rubles invested in an implementation project of SAP

Project History

2018: Choice of the contractor, purchase of licenses of SAP and beginning of work with TeamIdea integrator

At the beginning of 2018 Danaflex appealed to one of partners of SAP CIS to automate production at the plant, the representative of TeamIdea reported TAdviser. The partner company, whose name of TAdviser is not known, in 2018 carried out the analysis of activity and requirements Danaflex and also created together with the customer technical specifications for works, but finally did not sign the agreement of the party.

«
For what reasons - it is not known, but, judging from the situation which developed at us about Danaflex, most likely, the companies did not meet in project cost, - the representative of TeamIdea assumed in a conversation with TAdviser
»

On the basis of ready terms of reference and with the cut-down terms at the end of 2018 Danaflex addressed TeamIdea. Having studied terms of reference, TeamIdea prepared the commercial offer then addressed to SAP CIS behind purchase of a packet of licenses (what products were purchased, the company does not open).

«
As TeamIdea is a partner of SAP CIS, and approved purchase of this system Danaflex for convenience through TeamIdea. After this approval Danaflex and TeamIdea signed two agreements: on delivery and maintenance (technical support) of a system of SAP and to its implementation. The last represented the stage contract agreement, - the representative of TeamIdea noted
»

The representative did not sound the total cost of the agreements signed about Danaflex, having told that it is confidential information.

In December, 2018 Danaflex purchased through TeamIdea at SAP CIS a packet of licenses. After that, according to the agreement on implementation, TeamIdea began installation of a system, the representative tells it.

«
The agreement on system implementation of SAP was formed together with Danaflex on the basis of terms of reference, provided by the company, - the employee of TeamIdea adds. - The agreement provided implementation of TeamIdea of works on SAP implementation. At the same time in the document all three phases of these works were clearly stipulated, terms of accomplishment of each phase were specified, a cost assessment is given, restrictions on work types are registered, documentation at the exit is designated
»

2019

The client requires to render additional services, the integrator refuses

In March, 2019 TeamIdea executed two of three phases of the works provided by the agreement on implementation. However, as the representative of TeamIdea assumes, after that Danaflex decided that it "within this agreement can force the company to perform the works which are not specified in the document".

«
Danaflex began to press on TeamIdea, requiring additional services within implementation. This system consists of two parts: control block a piece of equipment of the plant (packaging thickness, feed speed, etc.) and control block at the enterprise level. But the agreement on implementation assumed creation by TeamIdea forces only of control block production at the enterprise level. And in it it was clearly registered that the control block at the level of items of equipment is outside the agreement, - the representative of TeamIdea told TAdviser
»

Danaflex, according to the representative of TeamIdea, began to put pressure upon the contractor and to try to force it to creation of control block of the plant in general without the mezzanine board. While the minimum size of additional payment would have to be about 40 million rubles, estimate at TeamIdea.

«
TeamIdea as a compromise suggested to meet and in details to discuss all necessary works and their financial side. First Danaflex approved a meeting, but as time approached, the company did not begin to come for negotiations and unilaterally disconnected all systems and accesses of TeamIdea for work on the agreement to implementation. About any payments it is possible already and not to tell Danaflex, the company did not pay up to the end even already executed services, - the representative of TeamIdea informed TAdviser
»

The integrator went to court to receive payment of the rendered services

In April, 2019 TeamIdea submitted to the Moscow arbitration court the recovery suit about Danaflex of 1.8 million rubles as payment for system implementation of SAP rendered in the I quarter 2019 and also percent for delay of this payment in the amount of 37.8 thousand rubles. In September, 2019 the Moscow arbitration court made in this claim the decision for benefit of TeamIdea.

Besides, in April, 2019 TeamIdea submitted to the Moscow arbitration court other claim to Danaflex – about collecting from the company of 687.8 thousand rubles as payment of services of technical support given in February, 2019 and also percent for delay of this payment in the amount of 2 thousand rubles. The Moscow arbitration court satisfied this claim partially. According to its solution, Danaflex had to pay by TeamIdea only the technical support provided in February. On this court's decision Danaflex submitted the appeal, but in November, 2019 it was not satisfied with court.

Thus, according to decisions of the Moscow arbitration court on two claims submitted by TeamIdea to Danaflex in April, the customer had to pay TeamIdea of 2.5 million rubles. As of November, 2019 Danaflex did not pay this amount, reported in TeamIdea.

In October, 2019 TeamIdea submitted the third claim to Danaflex - with request for payment of the last of the technical support services rendered to TeamIdea in March, 2019 and the II quarter 2019 in the amount of 4.5 million rubles. Court session ended also for benefit of the contractor.

According to three claims submitted to the Moscow arbitration court TeamIdea requires 7 million rubles of debt from Danaflex. However, as the representative of TeamIdea considered - it is only a part of all debt which is at Danaflex before TeamIdea. According to him, the company owes TeamIdea of 4 million more rubles – for the services rendered in III and IV quarter 2019. However as of the end of 2019 of TeamIdea did not bring up a question of submission of claims with requirements of collecting these debts as did not receive means which rely the company according to court's decisions on the claims submitted by TeamIdea in April.

Counter actions from the client with the requirement to return money for the unfortunate project

In April, 2019 Danaflex submitted to the Moscow arbitration court the counter action to TeamIdea and SAP CIS with the requirement to return all those means which Danaflex spent for payment of the agreements signed with the companies – 40.6 million rubles. However in October the Moscow arbitration court rejected this claim. As the representative of TeamIdea specified TAdviser, 40.6 million rubles make less than a half of the total cost of the agreements signed by the company about Danaflex.

In November, 2019 Danaflex submitted a new claim to TeamIdea and SAP CIS to the Moscow arbitration court. In the claim Danaflex requires to claim from the companies damages in the amount of 40.6 million rubles again. However, in addition, Danaflex requires to nullify the agreements signed with the companies. In November the Moscow arbitration court left this claim without the movement till December 20. As it is specified in determination of court, the basis to leave the claim without the movement, the fact that the company did not enclose the document confirming payment of the corresponding state fee to the application served.

2020

The client explained disappointment in the project with need to increase the budget from 90 to 400 million rubles

The Moscow arbitration court refused Danaflex the claim in which the company required to recognize the transaction with TeamIdea, integrator of the software (S) SAP CIS, invalid and to collect from it the amount paid according to the agreement - 40.6 million rubles. The court made such decision according to the results of the main hearing of the case which took place on February 28, 2020.

As the basis for recognition of the transaction invalid the representative Danaflex Vladislav Kostko announced default of TeamIdea at signing of the contract of need of software implementation – the MES systems – in addition to that software that is provided by the document. Owing to this fact, as certified Kostko's court, the Danaflex company was misled.

Let's note that the systems of the class MES provide on production solving of tasks of management of a production equipment at the level of specific items of equipment.

«
Signing the works agreement with TeamIdea, Danaflex recognized that the company automates its production, having installed the program of SAP. However, as it appeared, only at the expense of this system it is impossible to make it. Attraction of the additional software is necessary. Therefore instead of 90 million rubles the cost of industrial automation will be 400 million rubles. If the Danaflex company initially knew about these two facts, then would not sign the agreement with TeamIdea, - Vladislav Kostko said.
»

He also noted that the software of SAP which appears in it was necessary Danaflex, in particular, for ensuring production management at the new enterprise in the Czech Republic, the decision on which opening the company made in 2018.

As the basis for recognition of the transaction invalid the representative Danaflex Vladislav Kostko announced default of TeamIdea at signing of the contract of need of software implementation – the MES systems

Speaking about the proofs proving submission of the claim, Kostko paid attention to the technical specifications (TS) which formed the basis for signing of the contract from TeamIdea and submission of the commercial offer to that.

«
In these technical specifications there are no instructions on need of the additional software of MES, - Vladislav Kostko noted.
»

Besides, he drew the attention of court to the commercial offer Timidey.

«
It also does not contain any instructions on need of the MES system. Besides, the scheme of the organization of software implementation of SAP in which it is not specified the MES system too is provided in it. In the scheme under the name "Solution architecture" which is contained in the offer it is noted that production management will be provided only at the expense of the software of SAP, - Vladislav Kostko noticed.
»

The term of the contract concluded from Timidey, according to it, also misled Danaflex. In them it was noted that the company will execute for it development of a uniform software package on production and technology processes. In one of applications of the agreement "it was directly specified that industrial automation will be made and performed without integration into the MES system".

«
After TeamIdea started agreement performance, Danaflex received from it in March, 2019 the first conceptual project "Software implementation of SAP in Danaflex. Having detected in it instructions on system implementation of MES, the company at once sent several letters. The first – on March 15, 2019. In it was declared that, on belief Danaflex, the agreement does not provide the MES system and its integration. Unlike industrial automation, - Vladislav Kostko informed.
»

Further, according to him, between the companies correspondence from which it was clear that TeamIdea is not clear a position Danaflex took place.

«
TeamIdea also had an understanding that the MES system is not provided by the agreement. However the contractor considered that a system after all should be implemented. As production management without it is impossible. In response to this statement Danaflex sent on April 8, 2019 the letter in which it spoke about misunderstanding of the instruction TeamIdea on the MES system. Besides, Danaflex noted non-performance of Timidey of work properly – its implementation with permanent sendings on need of integration of MES, - Vladislav Kostko told.
»

According to him, such sendings were inadmissible as integration of a MES system was not provided by the agreement signed with TeamIdea. In other words, need for it was absent.

Also Vladislav Kostko produced to court the evidence that misunderstanding of need of the MES system by the company was caused "by circumstances which depended" on TeamIdea.

According to him as TeamIdea is a professional in the field of software implementation of SAP, it has knowledge necessary for this purpose. Unlike Danaflex.

«
At signing of the contract, when conducting contract work of TeamIdea studied all purposes and tasks standing before Danaflex. As a result of their achievement at the company industrial automation had to be carried out. What was specified also in the commercial offer (CO) TeamIdea, - Kostko noted.
»

The main objective Danaflex, according to KP, TeamIdea saw systematization and process automation of production of the enterprise. At the same time the Navision system existing at Danaflex not using MES had to be replaced with the software of SAP, - Vladislav Kostko said.

«
Proceeding from it, Danaflex came to a conclusion that no instruction on the MES system from TeamIdea will arrive further. Besides, the staff of the company repeatedly visited the Danaflex enterprise and investigated his requirements. Respectively, they could not but understand that Danaflex signs the agreement only for industrial automation, - Vladislav Kostko noticed.
»

Also commercial offer, according to him, said that TeamIdea understands that management and systematization of production will be carried out only at the expense of the software of SAP. Instructions on the MES system in it were absent.

Besides, Vladislav Kostko drew the attention of court to the letter of TeamIdea sent the company on April 16, 2020. TeamIdea in particular in it pointed Danaflex of the software package Navision to implementation.

«
Thus, and Danaflex, ordering Navision replacement, and TeamIdea, promising it to perform, recognized that she will not demand a MES system, - Vladislav Kostko noted.
»

According to him, follows from the listed facts that TeamIdea, knew Danaflex about the purposes and tasks, but, nevertheless, offered the companies the transaction on unreal conditions, thus having used her incompetence in appropriate questions. Besides, the mentioned circumstances say that before the conclusion of the transaction of TeamIdea did not explain Danaflex of all features of software implementation of SAP. So – about unfair default of TeamIdea.

The representative of TeamIdea Andrey Tersky also stated to court a position of the company.

According to him, the technical specifications of the customer are reflected in the agreement signed Danaflex with TeamIdea in accuracy. At the same time during consideration of the previous action for recovery of the paid funds from TeamIdea the court already studied similar claim requirements Danaflex. The company claimed about false assurances of TeamIdea at negotiation and granting unreliable information in anticipation of the conclusion of transactions on the basis of which it required to claim damages. However by court their collecting Danaflex it was refused.

«
However, afterwards the given solution was cancelled by Court of Appeal. Also proceedings in view of failure Danaflex from claim requirements were stopped. The claim requirements submitted this time by the customer are identical to them. In addition in them only the fact that Timidey misled Danaflex is specified, without having provided all necessary information. So it is told about TeamIdea default. The same deception, - Andrey Tersky informed.
»

At the same time, according to the law as Tersky noticed, the delusion concerning motives of the transaction is not rather essential reason for recognition of the transaction invalid. Besides, before the conclusion of the transaction, in avoidance of delusion, the organization should show discretion and care.

«
Danaflex did not produce any evidence and documents, confirmatory that they were shown by it, - Andrey Tersky noted.
»

According to him, Danaflex developed technical specifications completely independently.

«
We provided to court the e-mail in which Danaflex sent to the company technical specifications and requested the commercial offer. These technical specifications were also completely transferred to the agreement. Thus, signed the agreement TeamIdea on conditions Danaflex. Therefore we do not understand why we should be responsible for it, - Andrey Tersky noted.
»

Taking into account the new claim Danaflex, according to him, there are unclear actions concerning the judicial legal acts adopted in the first claim of the company. As Danaflex, in fact, requires to change the judgment concerning it and to level the approved acts.

«
"Timidey executed the transaction properly. Danaflex already began to use its services - it was set judicially. There is a question – how the company is going to return all TeamIdea provided to it according to the agreement? – Andrey Tersky asked.
»

Nullify the transaction, according to him, it is impossible as Danaflex already recognized it and performed. Start up also short time.

Telling about the statement Danaflex in which the company claims that there were in delusion otngsitelno MES systems, Andrey Tersky said that it is quite misleading.

«
A MES system was not included into technical specifications Danaflex. Besides, in the agreement signed by the company with TeamIdea there was its signature. In particular – opposite to provision according to which the lack of implementation of a MES system within automation is completely explained to it and it is clear. Besides, the company itself had the corresponding knowledge as, in particular, had the Chief information officer with whom corresponded Timidey in the state. And this head was designated also in the agreement - as authorized to communicate with the company within accomplishment of the transaction, - Andrey Tersky noted.
»

Besides, according to him, at agreement signature Danaflex it was accurately and clearly explained that at implementation of the production module integration of functionality of management of a production equipment will not be carried out and that it is beyond the scope of the agreement. Having learned about it, at first Danaflex refused agreement signature. However then the agreement, nevertheless, was signed.

«
In January, 2019, at study of a question of creation of architecture of implementation of the production module at Danaflex there was a persistent wish of implementation of the module of management of a production equipment again. Between TeamIdea and Danaflex the meeting on the matter where TeamIdea repeatedly noted the fact that this subject is beyond the scope of the signed agreement took place and the implementation cost of this functionality is comparable to the cost of the existing agreement, - Andrey Tersky informed.
»

After this meeting, according to him, Danaflex asked TeamIdea to notify in an official order him that the production management module at the level of management of a production equipment is outside the project. Sent the corresponding official letter TeamIdea Danaflex on January 29, 2019.

«
Also at this meeting of TeamIdea suggested to stop the project and to return advance payment for consulting services if without this functionality the company is not ready to continue the project, Andrey Tersky noted - Thus, TeamIdea considers that Danaflex was going on a free basis to receive an additional system from the company. Without having received it, decided to return those means which were already paid by TeamIdea.
»

The representative of SAP CIS drew the attention of court that Danaflex requires to nullify the transaction, announcing at the same time carrying out its payment under the agreement, performing it even at emergence of disagreements and knowing about its subject.

Also the representative of SAP CIS provided to court some information on background of the conclusion Danaflex of the agreement with TeamIdea.

According to him, being going to purchase the software of SAP, Danaflex addressed SAP CIS and at once was warned by the company that directly the agreement with it will not be signed by it. However SAP CIS suggested Danaflex to sign the agreement with his partner – Itelligence company - as with the organization having the corresponding experience. Danaflex, in return, asked SAP CIS to make explanations about properties of the software interesting him – SAP S/4 HANA.

This system as the representative of SAP CIS noted, is difficult and quite flexible software – each customer has an opportunity to configure it under himself.

«
SAP CIS provided Danaflex the document with the list of that software which at it the organizations for projects usually purchase, similar Danaflex, - the representative of SAP CIS noted.
»

Further, according to him, the company refused to sign the agreement with the partner of SAP CIS Itelligence and organized own tender. The victory in it was won by TeamIdea.

«
After that Danaflex sent to the company technical specifications, had no relation to which SAP CIS any more. TeamIdea on the basis of it terms of reference developed the commercial offer Danaflex. Based on it between the companies the agreement which was performed afterwards by TeamIdea properly was signed - the representative of SAP CIS noticed.
»

During court session Vladislav Kostko did not consider "well-founded" the proof of TeamIdea and SAP CIS.

So, in particular, he noted that in the actions Danaflex was circumspect. As the basis for such statement, according to him, serves that the company, having a need for a certain software, addressed the developer to such software and its integrator. The same fact that TeamIdea did not tell Danaflex about all features of software implementation, including need for industrial automation of its addition with a MES system, according to Kostko, speaks about "unfair behavior" of integrator.

According to him, after emergence of disagreements with TeamIdea "Danaflex" did not make payment under the agreement.

«
The company registered the last payment in February, 2019. That automation of its production is impossible without a MES system, she learned about the same only in April, 2019. After obtaining this information the agreement did not perform Danaflex and moreover – said its suspension and even termination. So very clearly let know that does not want to perform the agreement and does not confirm it, - Vladislav Kostko said.
»

On belief Danaflex, Timidey, having signed the agreement for 90 million rubles, then decided to agree about additional 310 million rubles.

the Conflict of the client and contractor because of SAP implementation came the Russian Federation to the Supreme Court

The Supreme Court refused to review a question of debt of Nano's Danaflex company to TeamIdea integrator to which repayment "Nano's Danaflex" was obliged by courts of subordinate instances. It is reported in determination of the Supreme Court on May 15, 2020.

The judge of the Supreme Court Ramziya Hatypova refused to the producer transfer of the writ of appeal on decisions of inferior courts for consideration of Judicial board on economic disputes of the Supreme Court of the Russian Federation. It did not find in documents for this purpose the corresponding bases.

Judicial proceedings between TeamIdea and "Nano's Danaflex" began after the producer in March, 2019 began to demand from integrator of additional services within system implementation of SAP: implementations in addition to control block production at the enterprise level also control block a piece of equipment of the plant.

The integrator submitted a number of claims to "Nano's Danaflex" for debt collection to the Moscow arbitration court. With what the writ of appeal "Nano's Danaflex" was connected TeamIdea gave to the Moscow arbitration court on April 4, 2019.

In return parties "Nano's Danaflex" also submitted claims on TeamIdea and SAP CIS, but all of them they were rejected by court. In one of them the producer required to nullify the agreements signed with the companies and to collect from them the amount paid according to agreements - 40.6 million rubles. In another - only to collect all funds for payment of agreements spent by it from the companies.

According to the owner of law firm "Katkov and partners" Pavel Katkov, the decision of the Supreme Court puts an end in any dispute. There is no place rise above, according to him, the losing party actually.

«
The only hole is a submission of own claim for return of advance payment and indemnification, however the customer already submitted such claim within one of affairs and lost, - Pavel Katkov noted.
»

The lawyer Alexander Titov drew the attention of TAdviser that after failure of the judge of the Supreme Court at "Nano's Danaflex" there were two days for submission of the complaint to it addressed to the vice-chairman or the chairman of the Supreme Court. Chances of review, according to Titov, were is insignificant are small, but procedurally the customer could take such step.

However the probability of change of the solution on the claim within its review by the Supreme Court would be all the same very small. The reason for that the fact that the new circumstance - recognition of transactions invalid which could declare "Nano's Danaflex" was already present at the counter action of the company which the court of first instance refused to it in February, 2020. Alexander Titov also zemechat that exactly, but with a bit different formulation, "Nano's Danaflex" dried the same basis also within other counter action.

«
In my opinion, at "Nano's Danaflex" actual bases for the statement of the claim for recognition invalid the agreements signed with the companies are weak. They come down to incorrect assessment of volume of required works and the purchased software at a stage of preparation of technical specifications. However the technical specifications were formulated by the customer. On lack of control block a piece of equipment of the plant specifies directly several points in the appendix to the works agreement. Therefore, "Nano's Danaflex" was informed on this circumstance at a stage of the conclusion of the transaction, - Alexander Titov notes.
»

At "Nano's Danaflex" the actual bases for the statement of the claim for recognition invalid the agreements signed with TeamIdea and SAP CIS are weak, - Alexander Titov says. (the photo is stcdn.business-online.ru)

The lawyer also drew the attention of TAdviser that recognition of the transaction invalid is very popular method to discredit the transaction and also the basis of emergence of debt. But practice of the last years, according to Titov, shows that "it is harder and harder to make all this".

Pavel Katkov told TAdviser about possible options of development of the situation, developed between "Nano's Danaflex" and TeamIdea.

  • Fight "Nano's Danaflex" up to the end;

«
Perhaps, he wins one of affairs that he develops practice in its direction and does useless the subsequent things in a chain of claims of the contractor. A situation on those affairs, solutions on which already became effective, including on case which was considered by the Supreme Court, it will not change, but at least will allow to constrain further building of a loss, - Pavel Katkov explains.
»

  • An exit "Nano's Danaflex" with the second counter action which subject differs from the first, earlier lost to it;

«
For example, the customer announces requirements not collecting paid under the agreement, and about a specific loss, proves it and wins. Further everything develops according to the first scenario, except affairs which already took place. It, of course, will be a fantastic situation, but it cannot be excluded, - Pavel Katkov notes.
»

  • Conciliation "Nano's Danaflex" and TeamIdea;

«
From my point of view, it is the most successful scenario. I was to mediators on extremely sharp disputes more than once, and I consider conciliation the highest achievement of judicial work because in this case both parties will receive the and will return to a business bed. So, in this case the contractor could moderate appetites, and the customer – to bring closer payment due dates. Let's remind that reconciliation of the parties is possible at any stage of process, including enforcement proceeding so this door is still open for them, - Pavel Katkov says.
»

  • Further pressure of TeamIdea upon "Nano's Danaflex" and his victory in all "a series of games".

«
It also occurs now before our eyes. "Nano's Danaflex" it is worth undertaking something, for example, to replace a judicial command. Quite often it helps. In particular helped with the case of the Russian owners against VKontakte which too came to the Supreme Court. If he does not make it, then, I am afraid, he will appear in extremely unpleasant situation: both the project is not complete, and money is lost, - Pavel Katkov notes.
»