Commentary to article 163-1. Coordination by the organizers of the procurement of goods, procurement and bidding operators of the activities of procurement suppliers, bidders  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Coordination by the organizers of the procurement of goods, procurement and bidding operators of the activities of procurement suppliers and bidders, if such an action leads or may lead to the prevention, restriction or elimination of competition and does not contain signs of a criminal offense, -

     entails a fine for officials in the amount of one hundred monthly calculation indices.

     2. The action provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -

     entails a fine for officials in the amount of one hundred and fifty monthly calculation indices.

     The commented article establishes administrative responsibility for the coordination of the activities of bidders and suppliers by the organizers of the procurement of goods, procurement and bidding operators.

     The offender is brought to administrative responsibility under the commented article only if there are no signs of a criminally punishable act in the offender's actions. Otherwise, the offenders, officials of the organizers of purchases and bidding operators, are subject to criminal liability for illegal actions in organizing purchases and bidding in accordance with the norms of the Criminal Code. In this regard, the initially illegal act of a person coordinating the purchase of goods and bidding should be checked by law enforcement agencies for the presence or absence of signs of a criminal offense and grounds for bringing the perpetrator to criminal responsibility.  

     The generic object of offenses provided for in Articles 163-1 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for conducting business in the Republic of Kazakhstan.  

     The direct object of the offenses provided for in Article 163-1 of the Administrative Code is the procedure established by the legislation of the Republic of Kazakhstan for conducting business in compliance with the principle of fair competition and the prohibition on coordinating the activities of procurement suppliers and bidders.

     The subjects of the offense provided for in Article 163-1 of the Administrative Code are officials of the organizers of the procurement of goods, procurement and bidding operators who violated the legal prohibition on coordinating the activities of procurement suppliers and bidders.

     The organizers of the procurement of goods, according to paragraph 2 of Article 169-1 of the PC RK, are understood to be:

     1) state bodies, state institutions, with the exception of the National Bank of the Republic of Kazakhstan and its departments;

     2) state-owned enterprises, legal entities, fifty or more percent of the voting shares (stakes in the authorized capital) of which belong to the state, and affiliated legal entities, national management holdings, national holdings, national companies and organizations, fifty or more percent of the shares (stakes in the authorized capital) of which are directly or indirectly they belong to the national management holding, the national holding, the national company, with the exception of organizations that are part of the structure of the National Bank of the Republic of Kazakhstan, and legal entities, fifty or more percent of the voting shares (participation shares in the authorized capital) of which belong to the National Bank of the Republic of Kazakhstan or are in its trust management;

     3) subsurface users who produce at large mineral deposits and purchase goods in accordance with the procedure established by the legislation of the Republic of Kazakhstan on subsoil and subsoil use;

     4) subjects of natural monopolies.

     Under the operators of procurement and bidding, according to paragraph 3 of art. 169-1 PC RK, refers to persons who provide organizational and technical support for purchases and auctions by directly conducting them using trading or information systems, commodity exchanges and other trading platforms, with the exception of persons who provide organizational and technical support for purchases and auctions using trading or information systems, commodity exchanges and other trading platforms for the sale of their own property and (or) the purchase of goods (works, services) for their own needs and (or) the needs of market entities belonging to the same group of persons.

     Procurement and bidding operators include:

     1) state bodies, state institutions, state-owned enterprises, legal entities, fifty or more percent of the voting shares (stakes in the authorized capital) of which belong to the state, and legal entities affiliated with them, national management holdings, national holdings, national companies and organizations, fifty or more percent of shares (stakes in the authorized capital which are directly or indirectly owned by a national management holding company, a national holding company, or a national company.;

     2) commodity exchanges and other trading platforms and systems where contracts for the sale of goods are concluded between market entities, between government agencies or government agencies and market entities.

     The subjective side of the unlawful acts provided for in Articles 163-1 of the Administrative Code for law-abusing officials is characterized by guilt in the form of intent. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.  

     The administrative offences provided for in Articles 163-1 of the Administrative Code are formal. To bring to administrative responsibility for their commission, it is not necessary to establish the fact that the offender caused material damage.  

     Part 1 of the commented article establishes administrative responsibility for the coordination by the organizers of the procurement of goods, procurement and bidding operators of the activities of procurement suppliers and bidders, if such an action leads or may lead to the prevention, restriction or elimination of competition and does not contain signs of a criminal offense.

     The objective side of the offense provided for in Part 1 of the commented article is characterized by the commission by the offender of illegal actions, expressed in the illegal coordination of the activities of bidders and procurement suppliers and which led (created a threat of bringing) to the prevention, restriction or elimination of competition.  

     According to the imperative requirement of clause 1 of Article 169-1 of the PC RK, organizers of procurement of goods, procurement and bidding operators are prohibited from coordinating the activities of procurement suppliers and bidders if this action leads or may lead to the prevention, restriction or elimination of competition.

     Violation of this prohibition by officials of the organizers of the procurement of goods, procurement and bidding operators entails administrative liability in accordance with Part 1 of the commented article.

     For committing an offense under Part 1 of Article 163-1 of the Administrative Code, the offender is punished with a fine.

     The amount of the fine for committing an offense under Part 1 of Article 163-1 of the Administrative Code is 100 MCI, is fixed and is not subject to change by the body imposing it.  

     An administrative penalty under Part 2 of the commented article is imposed on the offender by the antimonopoly authority or the court, in case the case is considered in court.

     Part 2 of the commented article establishes a more severe penalty for repeated commission of the act provided for in Part 1 of the commented article within a year after the imposition of an administrative penalty.  

     At the same time, the object, the subjective side and the subjects of the offense provided for in Part 2 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 1 of Article 163-1 of the Administrative Code.  

     In the description of the objective side of the offense provided for in Part 2 of Article 163-1 of the Administrative Code, a sign of repetition is added to the act provided for in Part 1 of the commented article.  

     An offense is considered to have been committed repeatedly if the person has previously committed the act provided for in Part 1 of Article 163-1 of the Administrative Code, has been subjected to administrative punishment for it, and the one-year period during which the person is considered to have been subjected to administrative punishment has not expired yet.

     The repetition of an offense is an independent qualifying feature, entailing the qualification of an unlawful act as an independent element of an offense under Part 2 of art. 163-1 of the Administrative Code.  

     Repetition as a qualifying feature is established not only in fact by identifying the number and nature of the unlawful acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing an offense under Part 1 of Article 163-1 of the Administrative Code, the existence of an effective and unturned court order imposing an administrative penalty under Part 1 tbsp . 163-1 of the Administrative Code, the fact of its announcement, delivery or referral to the offender and the expiration of a one-year period from the date of imposition of the penalty.

     If a person has committed an illegal act repeatedly or continues to commit it after the start of the commission and until it is revealed, but until that moment he has not previously been brought to administrative responsibility under Part 1 of Article 163-1 of the Administrative Code, then bringing him to responsibility under Part 2 of Article 163-1 of the Administrative Code is impossible, since there is no qualifying sign of repetition. In this case, the person must be brought to administrative responsibility and punished under Part 1 of art. 163-1 of the Administrative Code, even if there are signs of repeated violations during the year and the uniformity of the violations committed.  

For repeated commission of an offense under Part 1 of Article 163-1 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.

     The amount of the fine for committing an offense under Part 2 of Article 163-1 of the Administrative Code is 150 MCI, is fixed and is not subject to change by the body imposing them.  

     An administrative penalty under Part 2 of the commented article is imposed on the offender by the antimonopoly authority or the court, in case the case is considered in court.

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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