Consideration of complaints by the Public Procurement Appeals Commission
The Appeals Commission is established under the authorized body. The Chairman of the Appeals Commission directs its activities and chairs its meetings.
During the absence of the Chairman of the Appeals Commission from the meeting, his functions are performed by the Deputy Chairman of the Appeals Commission.
The Appeal Commission, which includes employees of the Ministry of Finance of the Republic of Kazakhstan and its departments, representatives of the National Chamber of Entrepreneurs of the Republic of Kazakhstan "Atameken" (as agreed) and industry associations (as agreed), consisting of at least 7 (seven) people::
Chairman of the Appeal Commission; Deputy Chairman of the Appeal Commission; members of the Appeal Commission consisting of at least five (5) persons. The work of the Appeals Commission is organized by the working body of the commission, a structural unit of the authorized body.
The Working Body, no later than 5 (five) business days following the day of receipt of the objection, complaint, on the basis of studying and analyzing the objection, complaint, as well as other documents and information related to the issues being appealed, forms and sends to the members of the Appeal Commission a certificate based on the results of studying and analyzing the objections, complaint (hereinafter referred to as – Certificate) with the attachment of relevant materials (the results of the analysis in the context of the contested issues, copies of objections, complaints, responses to requests), including those related to legally protected secrets in accordance with the Law of the Republic of Kazakhstan "On State Secrets".
The materials are sent to the members of the Appeal Commission. Earlier, before the statement of the Regulations, as amended by the Order of the Minister of Finance of the Republic of Kazakhstan dated January 21, 2022 No. 70, the Working Body drew up a preliminary opinion based on the results of consideration of the objection, complaint, and no later than 5 (five) working days before the meeting of the commission, sent its members a preliminary opinion based on the results of consideration of the objection, complaint, and copies of materials related to the contested issues.
The course of the meeting of the appeal commission is recorded using technical means of audio recording.
A meeting is considered competent if there is a quorum.
The quorum for the meeting is at least half of the number of members of the Appeals Commission, including the Chairman and his Deputy.
The decision of the appeal commission is made by a simple majority of the votes of the members present at the meeting by open voting, including through an electronic document management system.
In the event of a tie, the decision voted for by the Chairman of the Appeals Commission or his deputy is considered adopted.
The decisions made by the appeal commission, as well as the voting of the commission members based on the results of consideration of objections and complaints, are reflected in the minutes of the meeting of the appeal commission (hereinafter referred to as the Minutes), which are formed, including through an electronic document management system.
The minutes of the meeting are drawn up by the Working Body within one working day following the day of the meeting.
The protocol is signed by the members of the appeal commission who attended the meeting within one working day following the day of receipt of the draft protocol, including through the electronic document management system.
If issues related to two or more objections or complaints are considered at the meeting, a separate Protocol is drawn up for each objection or complaint.
The protocol is attached to the materials of the relevant objection or complaint.
Pre-trial dispute settlement procedure
In accordance with paragraphs 6, 7 of Article 47 of the Law on Civil Protection, based on the results of consideration of a complaint received within the time limits established by paragraph 2 of this Article, the authorized body shall make a decision in accordance with subparagraph 6) of Article 16 of this Law or to dismiss the complaint.
In case of disagreement with the decision of the authorized body adopted in accordance with paragraph 6 of this article, the potential supplier has the right to appeal it to the appeal commission in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan on state audit and financial control.
It follows from the meaning of this provision of the Law that if a potential supplier does not agree with the decision of the authorized body, when appealing actions (inaction), decisions of the customer, the organizer of public procurement within five working days from the date of posting the protocol on the results of public procurement by means of a tender (auction), appealing his decision to a higher authority is the right of a potential supplier.
However, paragraph 9 of the Law regulates that the pre-trial dispute settlement procedure provided for in this article is mandatory.
According to paragraph 2 of Article 58-6 of the Law "On State Audit and Financial Control", the appellate settlement of disputes in cases stipulated by this Law is mandatory.
By virtue of paragraph 33 of the Rules for conducting desk control, in case of disagreement with the decision of the department of the authorized body and (or) with the notification of the territorial subdivision sent in accordance with subitems 2 and 3) of part two of paragraph 26 of these Rules, the potential supplier who submitted an application for participation in the relevant tender (auction) and (or) the object of the state submits a complaint to the appeals Commission through publicly available information systems, including through a web portal in accordance with Appendix 7 to these Rules, or applies to the court.
JURISDICTION OF ADMINISTRATIVE CASES
According to the second part of Article 102 of the CPC, the courts have jurisdiction in administrative proceedings over disputes arising from public law relations provided for by this Code.
Paragraph 2 of the NPS No. 4 clarifies that challenging the results of the GZ, decisions of the authorized body on the registration of a potential supplier in the RNU, as well as decisions, conclusions, instructions, notifications of the authorized body based on the results of the audit of the GZ, is carried out in accordance with the procedure provided for in part three of Article 106 of the APPC, at the place of residence (location) of the plaintiff.
If the plaintiff, along with the claim for recognition of the results of the tender as illegal, requires that the concluded GZ agreement be declared invalid on this basis, then such claims are subject to joint consideration by the SMAS, taking into account the requirements of part three of Article 84, part three of Article 155, part two of Article 156 of the CPC.
NPS No. 4 also provides that in this case, regarding the claim for invalidation of the contract, the plaintiff is not required to comply with the pre-trial dispute settlement procedure provided for in the contract.
Claims of a potential supplier against actions (inaction), decisions of the customer, the organizer, the single organizer of the GZ, commissions, an expert, a single operator in the field of GZ, as well as actions (inaction), decisions of the authorized body and GAiFK bodies are subject to review by the SMAS.
Claims of the organizers of the GZ, customers related to the application of subitems 1) and 3) of the first part of paragraph 4 of Article 12 of the Law on GZ, as well as claims arising from the execution of contracts on GZ, are subject to consideration by the Council of Economic Cooperation.
Claims challenging the decision of the authorized body to recognize a potential supplier as an unscrupulous participant in the GZ, recognized as such in accordance with subparagraph 2) The first part of paragraph 4 of Article 12 of the GZ Law is subject to review by the SMAS.
PROCEDURAL TERMS IN COURTS
In accordance with parts 1 and 2 of Article 9 of the CPC, everyone has the right, in accordance with the procedure established by this Code, to apply to an administrative body, an official or a court for protection of violated or disputed rights, freedoms or legitimate interests.
The waiver of the right to appeal to an administrative body, to an official or to a court is invalid. in general, the Participants of the GZ have the right to apply to the court within the time limits set by the APPC.
Potential suppliers are challenging the decisions of authorized bodies, decisions, actions (inaction) of the customer, the organizers of the competition in the field of public procurement in accordance with Article 132 of the CPC.
At the same time, Article 136 of the APPC establishes deadlines for filing a lawsuit in court.
Claims for challenging or coercion are filed with the court within one month from the date of delivery of the decision of the body considering the complaint based on the results of the complaint review.
If the law does not provide for a pre-trial procedure or there is no body reviewing the complaint, the claim is filed within one month from the date of delivery of the administrative act or from the moment of notification in accordance with the procedure established by this Code and the legislation of the Republic of Kazakhstan.
The deadline for filing a claim that has been missed for a valid reason may be restored by the court according to the rules of the CPC.
The reasons for missing the deadline for filing a claim in court and their significance for the proper resolution of an administrative case are clarified by the court in a preliminary hearing.
Missing the deadline for filing a lawsuit without a valid reason, as well as the inability to restore the missed deadline for filing a lawsuit, are grounds for returning the claim.
The court finds out the reasons for the missed deadline in the preliminary hearing and resolves the issue of restoring the missed deadline.
In case of refusal to restore the missed deadline by the court, the claim is returned.
REGULATORY LEGAL FRAMEWORK
- The Constitution of the Republic of Kazakhstan;
- The Civil Code of the Republic of Kazakhstan (CC);
- The Civil Procedure Code of the Republic of Kazakhstan (CC)
- Administrative Procedural Procedure Code of the Republic of Kazakhstan (APPK); - Budget Code of the Republic of Kazakhstan;
- The Tax Code of the Republic of Kazakhstan;
- The Law of the Republic of Kazakhstan "On Public Procurement" (the Law on Public Procurement);
- The Law of the Republic of Kazakhstan "On State Audit and Financial Control" (the Law on GAiFK);
- The Law of the Republic of Kazakhstan "On Legal Acts";
- The Law of the Republic of Kazakhstan "On the National Welfare Fund";
- The Law of the Republic of Kazakhstan "On Procurement of certain entities of the quasi-public sector";
- Rules for public procurement, approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated December 11, 2015 No. 648 (Rules No. 648);
- Rules for the formation and maintenance of registers in the field of public procurement, approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated December 28, 2015 No. 694 (Rules No. 694);
- The rules for conducting desk control, approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated November 30, 2015 No. 598 (Rules No. 598);
- Rules for conducting internal State audit and Financial control, approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated March 19, 2018 No. 392 (Rules No. 392);
- A special public procurement procedure approved by Resolution of the Government of the Republic of Kazakhstan dated March 20, 2020 No. 127 (valid until December 31, 2020)
- Rules for public procurement using a special procedure, approved by Resolution of the Government of Kazakhstan dated December 31, 2015 No. 1200 (Rules No. 1200);
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 21, 2022 No. 4 "On the application of Legislation on public Procurement by Courts" (NPWS No. 4);
- The Fund's Procurement Management Standard, approved by the decision of the Board of Directors of the Fund No. 31/19 dated September 3, 2019; - other regulatory legal acts of the Republic of Kazakhstan.
ABBREVIATIONS
administrative act – administrative act
GZ - public procurement;
RNU – register of unscrupulous participants in public procurement;
SMAS – specialized interdistrict Administrative Court;
SKAD – judicial board for administrative cases of the regional court;
SCAD of the Supreme Court of the Republic of Kazakhstan – Judicial Board for Administrative Cases of the Supreme Court of the Republic of Kazakhstan;
SMEC – specialized interdistrict Economic Court;
Ministry of Finance - Ministry of Finance of the Republic of Kazakhstan;
Treasury – Treasury Committee of the Ministry of Finance of the Republic of Kazakhstan;
KVGA – Internal State Audit Committee of the Ministry of Finance of the Republic of Kazakhstan;
DVGA – Department of Internal State Audit of the Internal State Audit Committee of the Ministry of Finance of the Republic of Kazakhstan;
GAiFK – State audit and Financial control;
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