Administrative proceedings are conducted on the basis of the active role of the court

The task of administrative proceedings is the fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals, rights and legitimate interests of legal entities in public relations.

Administrative proceedings are conducted on the basis of the active role of the court.

This principle is based on the application by the court of various mechanisms for a favorable conclusion of the process.

All such actions are aimed at ensuring that the plaintiff can fully exercise his rights. The active role of the court is manifested in determining the subject of the claim and the court is not bound by the wording of the claims, the text of the claim and the documents attached to it or submitted later.

The court shall assist the party in formulating and (or) changing the claims with a preliminary explanation of the legal consequences. The analysis of the cases considered in the cassation procedure requires the attention of the courts of first instance to the errors of the following nature.

1) the active role of the court should include an explanation by the court to the plaintiff about clarifying the requirements, incorrect formulation of the requirements (the subject of the claim) by the plaintiff or his representative is allowed. The final purpose of the person's filing a claim with the court is not adequately clarified. These shortcomings must be eliminated in the process of preparatory actions and preliminary hearing.

2) it should be clarified about the filing of a claim against the proper defendant. In this case, the unlawful involvement of several defendants in the case will be excluded, which will save time and costs in the case (sending SMS notifications, documents, etc.). The plaintiffs, filing a lawsuit to the court challenging the protocol on the results of the competition, along with the organizer of the competition, indicate the DVGA as the defendant - the authorized body, at the same time they do not dispute his decision or actions (inaction).

3) abuse is seen on the part of the plaintiffs' representatives, who, despite the court's explanation of clarifying the requirements and pointing out the shortcomings, do not want to change their position, stating incorrect claims, from the resolution of which effective protection and restoration of violated rights will not be obtained. The plaintiff does not get the desired result from the actions of such representatives, and also the time of other participants in the process and the court is spent. In such cases, the provisions of article 127 of the CPC should be applied, imposing a monetary penalty on the person abusing procedural rights.

4) according to claims for challenging the orders of the authorized body on recognition as having evaded the conclusion of the contract and the inclusion of a potential supplier in the RNU, JSC "Center for Electronic Finance" is mistakenly involved as an interested person;

5) interested persons whose rights and legitimate interests may be affected by a judicial act are not involved in the case. The courts resolve issues about the rights and obligations of potential suppliers who are not involved in the case of the customer;

6) in cases of contesting the results of the competition, potential suppliers who eventually took subsequent places are involved as interested parties, whereas their results will no longer be able to influence the results of the competition;

7) the tender documentation is not fully requested. Due to the requirements of article 129 of the APPC, the burden of proof lies with the defendant. It is necessary to require the respondent to provide all the tender documentation, starting from the application of a potential supplier to participate in the tender.

8) in compliance with the pre-trial settlement, the participants of the GZ should request the conclusions of the appeal commission and the minutes of the meeting of the appeal commission, which contain the result of the vote and the decision of the commission based on the vote;

9) the claim of a potential supplier is unreasonably returned with reference to subparagraph 1) of part 2 of Article 138 of the CPC due to non-compliance with the pre-trial dispute settlement procedure established by law for this category of cases. While the plaintiff appealed the results of the competition to the DVGA, further appeal to a higher administrative body, in case of disagreement with the decision of the authorized body, is the right of a potential supplier in accordance with paragraph 7 of Article 47 of the Law on Public Procurement.

10) attention should be paid to the timing of filing a claim in court. According to the fifth part of Article 136 of the CPC, a person who did not participate in the administrative procedure, whose rights, freedoms and legitimate interests are affected by an administrative act, has the right to file a lawsuit in court within a month from the day when the person learned or could have learned about the adoption of an administrative act, but no later than one year from the date of its adoption.

The one-year period specified in this norm is suppressive and cannot be restored. In accordance with part eight of Article 136 of the APPC, the inability to restore the missed deadline for applying to the court is the basis for returning the claim. Consideration of the claim on the merits in this case is unlawful, due to missing the deadline for filing it, it is subject to refund on the basis of the above-mentioned rule of the APPC.

11) when forming an administrative case, it is allowed to clutter up cases by attaching duplicate documents. Often, the parties to a case can simultaneously provide the same evidence and documents to the court.

In this case, the judge should return the duplicate documents to the party that submitted them. The courts of appeal:

1) the circumstances of establishing mandatory signs of public-law relations, subjects with authority over the other party (according to claims of potential suppliers to Samruk Kazyna Contract LLP) are not taken into account;

2) the requirement of a mandatory pre-trial dispute settlement procedure by the plaintiff to higher authorities is allowed, whereas such a person has exercised his right by contacting the territorial authority of the Far Eastern Administrative District.

3) according to the second paragraph of Part 3 of Article 1 of the APPC, the provisions of the CPC are applied in administrative proceedings, unless otherwise provided by the APPC. In accordance with part 7 of Article 429 of the CPC, in the cases established by this Code, the rulings of the court of appeal, blocking the possibility of further movement of the case, may be appealed and protested. The second paragraph of part 10 of Article 168 of the CPC establishes that other rulings of the court of appeal, blocking the possibility of further movement of the administrative case, may be appealed in cassation.

According to the third part of Article 138 of the APPC, the return of the claim does not prevent the re-filing of the claim to the court, with the exception of sub-paragraphs 3), 5), 9), 11), 12), 13), 14), 15) and 17) of the second part of this article, to the same defendant, on the same subject and for the same reasons. Based on the legal nature of the contested judicial acts that do not impede the movement of the case, do not belong to the category of judicial acts that block the possibility of further movement of the administrative case.

By virtue of part 2 of Article 169 of the Administrative Procedure Code, participants in the administrative process have the right to appeal against judicial acts that have not entered into force in cassation.

The procedure, terms and conditions of cassation appeal of judicial acts that have entered into force in administrative cases are provided for in parts three and six of Article 169 of the Code of Administrative Procedure.

In this regard, cassation complaints against these definitions of the first and appellate instances must be returned, and cannot be accepted for consideration in cassation.

Pre-trial dispute settlement procedure

In accordance with paragraphs 6, 7 of Article 47 of the Law on GZ, based on the results of consideration of a complaint received within the time limits established by paragraph 2 of this article, the authorized body makes a decision in accordance with subparagraph 6) of Article 16 of this Law or on refusal to satisfy 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 in case of disagreement of a potential supplier with the decision of the authorized body, when appealing against actions (inaction), decisions of the customer, the organizer of public procurement within no later than five working days from the date of posting the protocol on the results of public procurement by means of a tender (auction), appealing its 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 provided for 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 division sent in accordance with subparagraphs 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 state an audit, submits a complaint to the appeals Commission through publicly available information systems, including through a web portal in accordance with Annex 7 to these Rules, or appeals to the court.

JURISDICTION OF ADMINISTRATIVE CASES

According to the second part of Article 102 of the Code of Administrative Procedure, the courts have jurisdiction over disputes arising from public law relations provided for by this Code.

Paragraph 2 of NPS No. 4 clarifies that challenging the results of the GZ, decisions of the authorized body on the entry of a potential supplier into the RNU, as well as decisions, conclusions, prescriptions, 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 requirement to recognize the results of the competition as illegal, demands to recognize the concluded contract on GZ invalid on this basis, then such claims are subject to joint consideration in 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 APPC.

NSAID No. 4 also provides that in this case, in terms of the claim for invalidation of the contract, the plaintiff does not need to comply with the procedure for pre-trial settlement of the dispute 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 consideration by the SMAS.

Claims of the organizers of the GZ, customers related to the application of subparagraphs 1) and 3) of part one 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 SMEC.

Lawsuits 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 Law on GZ is subject to consideration by the SMAS.

PROCEDURAL DEADLINES IN THE 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 the 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 challenge 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 APPC.

At the same time, Article 136 of the APPC establishes a time limit for filing a claim in court.

Claims for contestation or coercion are filed with the court within a month from the date of delivery of the decision of the body considering the complaint based on the results of the consideration of the complaint.

If the law does not provide for a pre-trial procedure or there is no body considering 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 time limit for filing a claim that has been missed for a good reason can be restored by the court according to the rules of the CPC.

The reasons for missing deadlines for filing a lawsuit and their importance for the correct 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 missing the 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 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 Code of the Republic of Kazakhstan (APPC); - 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 subjects of the quasi-public sector";

- Rules for Public Procurement approved by Order No. 648 of the Minister of Finance of the Republic of Kazakhstan dated December 11, 2015 (Rules No. 648);

- Rules for the formation and maintenance of registers in the field of public procurement, approved by Order No. 694 of the Minister of Finance of the Republic of Kazakhstan dated December 28, 2015 (Rules No. 694);

- Rules for conducting desk control, approved by Order No. 598 of the Minister of Finance of the Republic of Kazakhstan dated November 30, 2015 (Rules No. 598);

- Rules for Conducting Internal State Audit and Financial Control, approved by Order No. 392 of the Minister of Finance of the Republic of Kazakhstan dated March 19, 2018 (Rules No. 392);

- Special procedure for public procurement approved by Resolution of the Government of the Republic of Kazakhstan dated March 20, 2020 No. 127 (valid until December 31, 2020)

- Rules for the implementation of public procurement using a special procedure, approved by the Decree 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" (NPVS No. 4);

- The standard for managing the Fund's procurement activities, 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

GZ - public procurement;

RNU – register of unscrupulous participants in public procurement;

SMAS – specialized inter-district Administrative Court;

SCUD – 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;

SMES is a specialized inter–district 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;

Attention!  

       The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in legal advice, drafting any legal document that is suitable for your situation.  

      For more information, contact a Advokat/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

 Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases disputes Defense Arbitration Law Company Kazakhstan Law Firm Court cases