Disputes about challenging the results of desk control by the Authorized body of the DVGA KVGA
By virtue of part 5 of Article 100 of the CPC, if the body reviewing the complaint has not made a decision on the results of the complaint within the time limits set by the CPC, then from the date of expiry of the time limits, it is considered that the body reviewing the complaint has refused to satisfy the complaint.
Paragraph 1 of Article 47 of the Law stipulates that a potential supplier has the right to appeal against the 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 State audit and financial control bodies monitor compliance with the legislation of the Republic of Kazakhstan on public procurement within the limits of their powers established by the Law of the Republic of Kazakhstan "On State Audit and Financial Control" (hereinafter – the Law on GAiFK).
Actions (inaction), as well as decisions of the authorized body and bodies of state audit and financial control may be appealed in accordance with the procedure established by the legislation of the Republic of Kazakhstan (Article 18 of the Law on Public Procurement).
The authorized body for internal state audit conducts desk control, which is another form of control carried out by a territorial subdivision of the department of the authorized body for internal state audit without visiting the object of state audit and financial control (hereinafter referred to as the object of state audit) based on the analysis and comparison of information system data, as well as information on the activities of state audit facilities.
The procedure for conducting desk control is regulated by the Rules for Conducting Desk Control, approved by Order No. 598 of the Minister of Finance of the Republic of Kazakhstan dated November 30, 2015 (hereinafter referred to as Rules No. 598).
Desk control of public procurement procedures is carried out prior to the conclusion of public procurement contracts.
Based on the results of desk control, the territorial subdivision of the authorized body (DVGA) draws up and sends to the objects of state audit a notification on the elimination of violations identified by the results of desk control, in accordance with the form established by Rules No. 598 with a description of the violations identified, and is automatically registered on the web portal.
The notification is sent to the state audit facility via a web portal no later than five working days from the date of detection of violations. The decision of the DVGA is executed by the object of the state audit within ten working days from the day following the day of its delivery (receipt) to the object of the state audit.
In case of disagreement with the decision of the authorized body, 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 (paragraph 7 of Article 47 of the Law).
Paragraph 8 of Article 47 of the Law, as part of a pre-trial settlement, gives a potential supplier the right to choose whether to apply to a higher authority or to a court (Decisions of the authorized body taken as a result of consideration of the complaint may be appealed in court in accordance with the legislation of the Republic of Kazakhstan).
In case of challenging the results of the competition through the web portal, a potential supplier has already filed a complaint with the DVGA, thereby complying with the pre-trial settlement of the dispute.
If the deadline for filing a complaint with the DVGA is missed, the complaint is considered as part of an electronic state audit in accordance with the legislation of the Republic of Kazakhstan on state audit and financial control.
The obligation to settle a dispute in a pre-trial manner for a camera control facility in case of disagreement with the decision of the authorized body is provided for in paragraph 9 of Article 47 of the Law.
It follows from the content of Article 58-1 of the GAiFK Law that objections to the audit report, appeals against decisions, actions (inaction) of the authorized body for internal state audit and (or) its officials are considered by the appeals commission under the authorized body for internal state audit.
According to paragraph 2 of Article 58-6 of the Law, the appellate settlement of disputes in the cases provided for by this Law is mandatory.
A potential supplier has the right to file a complaint, and the organizer, the customer, file an objection, which are considered in accordance with the procedure and deadlines set out in Chapter 11-1 of the GaiFK Law and the regulations on the appeals commission under the authorized body for internal state audit, approved by order of the First Deputy Prime Minister of the Republic of Kazakhstan. – The Minister of Finance of the Republic of Kazakhstan dated March 20, 2020 No. 302 "On Approval of the Composition and Regulations on the appeal commission for Reviewing Objections to an audit report or an audit report on financial Statements, Notification of the elimination of violations Identified by the results of desk control by the authorized body for internal State audit, and Appealing decisions, actions (inaction) of the authorized body on internal state audit and (or) its officials".
The Appeal Commission, based on the results of consideration of an objection, complaint, makes one of the following decisions::
1) full or partial satisfaction of an objection or complaint;
2) the refusal to satisfy an objection or complaint with the justification for making such a decision.
The decision of the appeal commission is made in writing and is binding on the subject of state audit.
The results of consideration of objections and complaints are drawn up by the authorized body for internal state audit within two working days from the date of the decision by the appeals commission. The results of consideration of an objection are formalized by an opinion (paragraph 30 of Rules No. 598).
On public procurement issues, the decisions of the appeals commission are posted on the public procurement web portal within one working day from the date of sending the results of consideration of the objection or complaint to the applicant.
The decision taken by the appeals commission is appealed in court in accordance with the requirements of the APPC.
The Appeal 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 Appeals Commission;
Deputy Chairman of the Appeals 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 vote 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.
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;
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