The establishment of a material change in the circumstances under which the Supplier’s obligations for the manufacture and delivery of the Goods were determined under the State procurement contract (agreement) may be carried out through an independent professional examination in the form of a conformity assessment.
Such a change in circumstances may be caused by various factors. In particular, within the framework of the conducted examination, it has been established that it is due to the need to comply with technological production standards for the relevant batch of Goods (not less than 62 working days) made from raw knitted fabric, which was delivered to Ukraine on January 20, 2015 from the Republic of Uzbekistan via the only possible route (Uzbekistan — Kazakhstan (via the Caspian Sea) — Azerbaijan — Georgia — Turkey — Bulgaria — Romania — Ukraine) with a delay of 20 calendar days.
Such delay occurred in the course of performance of the Contract for the organization of international and domestic road freight transportation and freight forwarding services related to the State procurement contract (agreement), under which the Goods are manufactured, and was caused by force majeure circumstances, namely: adverse weather conditions in the Caspian Sea area (storm) and a significant accumulation of vehicles (approximately 1,000 units) waiting for a ferry at the Kuryk port (Republic of Kazakhstan).
The expert conclusion of the independent professional examination in the form of conformity assessment proves that the established material change in circumstances:
- has the characteristics of unpredictability at the time of contract conclusion, duration, inevitability, and arose independently of the will of the parties;
- objectively complicated the performance of the Supplier’s obligations and significantly affected the possibility of their fulfillment within the time limits specified in the contract;
- is in a direct causal relationship with the disruption of the balance of the parties’ property interests and lies beyond their control, which excludes the fault of the parties in the occurrence of the relevant consequences.
The established material change in circumstances, within the meaning of part one of Article 652 of the Civil Code of Ukraine, constitutes a justified legal ground for the parties to revise the essential terms of the contract in order to restore the balance of their property interests.
Taking into account the principle of freedom of contract and the dispositive nature of legal regulation of contractual obligations, this grants the Supplier the right to initiate amendments to the State procurement contract (agreement), in particular with regard to adjusting the delivery dates of the Goods specified in the production schedules (Annexes 3 and 4 to the contract).
