APPEAL OF THE RESULTS OF THE PUBLIC PROCUREMENT COMPETITION
According to article 47 of the Law, a potential supplier has the right to appeal against actions (inaction), decisions of the customer, the organizer of public procurement, the single organizer of public procurement, commissions, experts, a single operator in the field of public procurement, if their actions (inaction), decisions violate the rights and legitimate interests of the potential supplier.
The protocol on the results of public procurement by means of a tender should contain the following information:
1) on bringing applications for participation in the competition in accordance with the qualification requirements and the requirements of the tender documentation;
2) on the requests of the competition commission in accordance with subitems 1) and 2) of paragraph 5 of Article 27 of this Law;
3) about potential suppliers whose applications for participation in the tender were rejected, with a detailed description of the reasons for their rejection, including information and documents confirming their non-compliance with the qualification requirements and the requirements of the tender documentation.;
4) other information defined by the rules of public procurement.
The results of the competition were disputed by potential suppliers for the following reasons:
a) the unreasonableness of calculating the work experience of potential suppliers
b) rejection of the application due to the discrepancy between the potential supplier's material resources
c) rejection of the application due to the potential supplier's lack of human resources.
According to subparagraph 5 of paragraph 1 of Article 9 of the Law, qualification requirements are imposed on a potential supplier: work experience (except in cases where the subject of public procurement recognizes the availability of a license and (or) permission from a potential supplier).
In order to confirm its compliance with the qualification requirements established by this article, the potential supplier shall submit to the organizer of the procurement procedure the relevant documents provided for in the rules for public procurement (paragraph 3 of Article 9 of the Law).
By Order dated January 14, 2022, the Rules for Public Procurement, approved by Order No. 648 of the Minister of Finance of the Republic of Kazakhstan dated December 11, 2015, are set out in a new edition. The latest changes were made by orders of the Minister of Finance No. 1061 dated October 13, 2022 and No. 1110 dated October 31, 2022.
Paragraph 243 of the Rules stipulates that the following criteria are applied in the implementation of the GZ by way of competition, affecting the competitive price offer:
1) the potential supplier has experience in the market of works and services that are the subject of ongoing public procurement;
2) the indicator of taxes paid;
3) an indicator of financial stability, calculated when the conditional prices of competitive price proposals are equal;
4) functional, technical, qualitative and operational characteristics of the goods and (or) the costs of operation, maintenance and repair of the purchased goods.
Paragraph 244 of the Rules states that when considering the availability of work experience of a potential supplier participating in the competition, the competition commission considers work experience only in the market of work and services purchased at this competition, including similar types of work and services.
Paragraph 245 of the Rules stipulates that the tender commission, when forming the protocol on the results of public procurement by means of a tender, determines conditional discounts in accordance with the criteria provided for in the tender documentation, in accordance with paragraph 243 of these Rules, with respect to each potential supplier who submitted an application for participation in the tender, except in cases where participation in the tender is submitted one application.
If a potential supplier fails to provide documents confirming these criteria, the competition commission does not apply an appropriate conditional discount to such a potential supplier.
Previously, the norms of paragraph 152-1 of the Rules were applied, which stated that in order to determine the bidder offering the highest quality goods, work, or service, the organizer provides in the tender documentation, among the criteria affecting the competitive price offer, that the potential supplier has experience in the market of goods, works, and services that are the subject of public procurement during the for the last ten years (until January 14, 2022).
Information and documents confirming the work experience of a potential supplier over the past ten years, including for the current year, are entered into the electronic depository by the department of the authorized body (State Institution "Treasury Committee of the Ministry of Finance of the Republic of Kazakhstan") and its territorial divisions after confirming their authenticity (paragraph 89 of the Rules).
Applications from potential suppliers for entering information and documents confirming work experience over the past ten years, including for the current year, into the electronic depository are generated by the potential supplier and submitted via the web portal.
Such applications from potential suppliers are considered by the department of the authorized body and its territorial divisions within ten working days.
The depository is also formed by making adjustments to the information entered into the electronic depository.
In accordance with paragraphs 96, 97 of the Rules, based on the results of consideration of applications from potential suppliers for confirmation of the accuracy of information and documents confirming their work experience entered into the electronic depository, one of the following decisions is made through the web portal in the context of each potential supplier's work experience:
1) confirmation, which is accepted in cases of compliance of information and documents with the requirements provided for in paragraphs 91-93 of these Rules.;
2) the refusal of confirmation, which is accepted in the following cases:
establishing the fact that a potential supplier has provided false information on documents confirming work experience;
non-compliance of information and documents with the requirements stipulated in paragraphs 91-93 of these Rules.
Information and documents confirming the work experience of a potential supplier are entered into the electronic depository with the status "Confirmed" in the event of a decision provided for in subparagraph 1) paragraph 96 of these Rules.
Paragraph 102 of the Rules regulates that the decisions provided for in paragraphs 96 and 101 of these Rules are appealed in court in accordance with the legislation of the Republic of Kazakhstan.
Since September 2019, the work experience of potential suppliers has been confirmed by posting certificates of completed work in the electronic depository of the public procurement web portal.
The authorized body makes a decision and one or another work experience is verified.
By virtue of the above-mentioned rules, the organizers and customers of the contest must act within their competence and comply with the requirements of the legislation when summing up the results.
In this case, the competition commission needs grounds to exclude the work experience of a potential supplier when summarizing the results of the competition. In other words, the decision to confirm the accuracy of information about the work experience of a potential supplier and to confirm the adjustment must be appealed in court and canceled.
Consequently, in the absence of grounds that have not occurred, the trust of a participant in an administrative procedure in the activities of an administrative body or official is protected by the laws of the Republic of Kazakhstan in accordance with parts 1, 2 of Article 13 of the CPC.
An administrative act or an administrative action (inaction) is considered lawful and justified until the administrative body, official or court determines otherwise in accordance with the legislation of the Republic of Kazakhstan.
A lawful favorable administrative act may be revoked only in cases provided for by the norms of Part 4 of Article 85 of the CPC, and an illegal favorable administrative act is subject to revocation in accordance with Part 7 of Article 84 of the CPC, applied if there are grounds provided for in Part 6 of this article, namely:
1) the legal act on the basis of which the administrative act was issued has been declared unconstitutional;
2) the deliberate unreliability of the document or information provided by the participant in the administrative procedures has been established;
3) an administrative act was adopted as a result of a participant in an administrative procedure committing illegal actions established by a verdict or court decision that has entered into legal force, a decision of the prosecutor, a criminal prosecution body, or a body (official) authorized to consider cases of administrative offenses.;
4) an administrative act affects the state or public interests, the security of the state, or may lead to serious irreversible consequences for human life and health.
Legislation on public procurement imposes qualification requirements on potential suppliers regarding the possession of material, labor and financial resources sufficient to fulfill obligations under a public procurement contract (subparagraph 4 of paragraph 1 of Article 9 of the Law).
By virtue of article 10 of the Law, a potential supplier is deemed not to meet the qualification requirements for one of the following reasons:
1) failure to submit a document(s) to confirm compliance with the qualification requirements of a potential supplier and (or) a subcontractor (co-executor) of works or services engaged by him;
2) establishing the fact of non-compliance with the qualification requirements based on the information contained in the documents provided by the potential supplier to confirm its compliance, as well as the non-compliance of the subcontractor (co-contractor) of works or services attracted by him with the qualification requirements;
3) establishing the fact of providing false information on qualification requirements.
One of the principles of the implementation of GZ defined in Article 4 of the Law is the principle of optimal and efficient spending of money used for GZ.
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.
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;
Attention!
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