Cases when the customer does not take measures to include potential suppliers or suppliers in the Register of unfair participants in the procurement and impose penalties on them
In accordance with presidential decrees No. 285 of March 15, 2020, No. 306 of April 14, 2020, No. 310 of April 29, 2020, in order to protect the life and health of citizens in connection with the declaration by the World Health Organization of the COVID-19 coronavirus as a pandemic, a state of emergency was introduced throughout the Republic of Kazakhstan from March 16, 2020, which was extended until May 11, 2020. In order to implement the Presidential Decree No. 287 of March 16, 2020" on further measures to stabilize the economy", the Government Decree No. 127 of March 20, 2020 approved a special procedure for Public Procurement, which was in effect until December 31, 2020. The special procedure determines the procedure for carrying out public procurement in the period of crisis situations. In cases where potential suppliers identified as winners in accordance with paragraph 9-1 of the special procedure evade the conclusion of a public procurement contract or the supplier does not fulfill or improperly fulfills contractual obligations arising from the introduction of a state of emergency, the customer does not take measures to include such potential suppliers or suppliers in the Register of unfair participants in procurement and impose penalties on them.
Cases when the customer does not take measures to include potential suppliers or suppliers in the Register of unfair participants in the procurement and impose penalties on them
By the resolution of the plenary session of the Supreme Court of the Republic of Kazakhstan dated May 6, 2020 No. 9, explanations No. 1 were given on certain issues of judicial practice in connection with the introduction of a state of emergency. In particular, the plenary session explained that the Government Resolution No. 127 dated March 20, 2020 "on determining the special procedure for Public Procurement" prohibits the customer from making claims: 1) on recognizing the supplier as an unfair participant in public procurement; 2) on collecting fines. If such a claim is made by the customer, the judge refuses to accept the statement of claim as not subject to consideration in civil proceedings.
The courts, referring to the above provisions of regulatory acts and refusing to accept the statement of claim, indicated from the point of view of the law that the non-fulfillment of obligations was caused by circumstances unrelated to the supplier, since the deadline for fulfilling the supplier's obligations was during the Emergency period (from March 16 to May 11, 2020). At the same time, in judicial practice there were separate cases when the court of Appeal unreasonably canceled the force of the court ruling on the refusal to accept the claim and sent the case to the same court for consideration on the merits. For example, on July 23, 2020, by the decision of the judge of the Zhambyl regional court, the ruling of the Mapp of Zhambyl region dated May 18, 2020 on the refusal of the RSE "Center for forensic examinations of the Ministry of Justice of the Republic of Kazakhstan" to accept the claim for recognition of P LLP as an unfair participant in public procurement was canceled. In the justification for the cancellation of the ruling, the judge indicated that the agreement between the parties was concluded on April 13, 2020 with a deadline for execution until May 4, 2020, the state of emergency ended on May 11, 2020. However, the defendant did not fulfill the obligations under the contract, did not provide evidence of non-fulfillment of the obligation due to an emergency. Such an argument of the court clearly does not correspond to the requirements of the above government decree and the interpretation of the plenary session of the Supreme Court. With a new consideration of the case, the proceedings in the case were terminated by the ruling of the court of first instance dated November 2, 2020. The court indicated from the point of view of the law that the claim presented is not subject to consideration in the order of civil proceedings, since non-fulfillment of obligations was caused by circumstances unrelated to the supplier, and the term of fulfillment of obligations by the supplier occurred during the state of emergency.
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