Invalidation of the public procurement contract, recognition as illegal and cancellation of the protocol of the results
No.6001-23-00-6ap/239 dated 07/20/2023
Plaintiff: "G" LLP
The defendants are: RSU "Department of Internal State Audit" (hereinafter referred to as the Department), GU "Department of Energy and Housing and Communal Services", GU "Department of Public Procurement", LLP "T-G"
The subject of the dispute: on the recognition of illegal and cancellation of the protocol of the results, notification of the elimination of violations identified by the results of desk control, on the invalidation of the public procurement contract
Review of the plaintiff's cassation appeal
PLOT: The plaintiff participated in the electronic tender for public procurement of works No. 7768921-1 "Construction of the supply gas pipeline and gas distribution networks of the village", lot No. 53038171-OKI "Works on construction (construction) of networks/ systems/ facilities/gas supply stations/gas distribution".
The organizer of the purchase is the State Institution "Department of Public Procurement", the customer is the State Institution "Department of Energy and Housing and Communal Services", subsequently, due to the creation of new territorial administrative units, the customer was changed to the State Institution "Department of Energy and Housing and Communal Services of region A."
Based on the results of the examination of applications, the competition commission determined the winner of T-G LLP, the potential supplier, who took the second place, E LLP. On July 22, 2022, the plaintiff filed a complaint with the Department regarding the legality of the actions of the competition commission to calculate the conditional work experience discount in relation to the plaintiff's tender application.
Complaints were also filed by T-G LLP and R LLP. On August 10, 2022, based on the results of the complaint review, the Department issued a notification on the elimination of violations identified by the results of desk inspection No. 191010000-4-6/7-181182 (hereinafter referred to as the Notification), according to which the plaintiff's complaint was fully satisfied, while the conditional discount on work experience was recalculated against the plaintiff and the amount of the conditional discount was changed from 4.8 by 10%.
In addition, in addition to the change in the amount of the conditional discount, the Notice rejected the plaintiff's bid due to the finding of non-compliance with the qualification requirements in terms of not providing information on the subspecies of the licensed type of activity provided for by the Law of the Republic of Kazakhstan "On Permits and Notifications". The complaint of LLP "R" was returned in connection with the withdrawal, and the complaint of LLP "T G" was partially satisfied, in terms of assigning conditional discounts, the complaint was not confirmed, and in terms of the arguments for not providing information about the subspecies of the licensed type of activity by the plaintiff, the complaint was confirmed. These arguments were set out in the addendum to the complaint sent on August 8, 2022.
Pursuant to the Notification of the State Institution "Public Procurement Department", a new protocol of results was issued, according to which the claimant's tender application was rejected from participation in the tender due to the fact that Appendix 9 (Information on qualifications and criteria affecting the competitive price offer for procurement of construction works) does not provide information on the subspecies of the licensed type. activities provided for by the Law "On Permits and Notifications", that is, incomplete information on qualifications is provided in accordance with appendices 8, 9, 10 and 11 to the tender documentation.
In addition, pursuant to the protocol of results, an agreement was concluded on 74 public procurement works No. 85/22 dated September 14, 2022, between the State Institution "Public Procurement Department" and T-G LLP, and additional agreement No. 1 dated October 11, 2022 to agreement No. 85/22 dated September 14, 2022 in connection with the creation of of the new territorial administrative units, the customer was changed to the State Institution "Department of Energy and Housing and Communal Services of the Moscow region".
Disagreeing with the position of the authorized body, the plaintiff appealed to a higher authority on August 23, 2022. In response to the complaint, the higher authority supported the Department's position.
Disagreeing with the actions of the State Institution "Department of Public Procurement" and the Department, the plaintiff appealed to the court with a claim for recognition as illegal and cancellation of the protocol of the results, notification of elimination of violations identified by the results of desk control, and invalidation of the public procurement contract.
Judicial acts:
1st instance: the claim is partially satisfied.
It was decided: to declare illegal and cancel the protocol on the results of the tender No. 7768921-OK1 dated August 25, 2022; to invalidate the contract on public procurement of works No. 85/22 dated September 14, 2022, additional agreement No. 1 dated October 11, 2022 to the said contract, concluded between the State Institution "Department of Energy and Housing and Communal Services of the region A" and "T-G" LLP. The claim for recognition as illegal and cancellation of the notification of the elimination of violations identified by the results of desk control was refused. By a court ruling, the claim regarding the requirements to the State Institution "Police Department" was returned due to the plaintiff's failure to comply with the pre-trial dispute settlement procedure.
Appeal: the court's decision remains unchanged.
Cassation: the court's decision is upheld.
Conclusions: According to the results of the desk inspection, the violations identified are set out in the annex to the Notification, which states that by studying the tender application of a potential supplier to G LLP, it was established that they did not declare in the qualification information the subspecies of the licensed type of activity - "Power supply networks and outdoor lighting devices, indoor lighting systems and electric heating".
On January 14, 2022, the Rules for Public Procurement, approved by Order of the Minister of Finance of the Republic of Kazakhstan dated December 11, 2015 No. 648 (as amended by Order of the Minister of Finance of the Republic of Kazakhstan dated January 14, 2022 No. 35) (hereinafter referred to as the Rules), were amended and supplemented with Annex 9 to the tender documentation, namely In paragraph 1 of the Information on qualifications and criteria affecting the competitive price offer for procurement of works in the construction sector, the norm on the subspecies of the licensed type of activity was changed.
Previously, in the specified application, potential suppliers were required to provide information about the subspecies of the licensed type of activity, with the exception of work on housing and civil facilities.
However, after the changes were made on January 14 of this year, the exclusion rule for residential and civil facilities was removed from this paragraph, and this column must be filled in in all cases, without exception, regardless of the object being purchased, from the moment the changes were made.
In this regard, the court of first instance reasonably concluded that the Department legitimately established in the Notification that the plaintiff's application should have been rejected by the Office, since in Appendix 9 to the tender documentation, namely in paragraph 1 of the Information on qualifications and criteria affecting the competitive price offer, the plaintiff did not provide information on subspecies of the licensed type of activity provided for by the Law "On Permits and Notifications", that is, incomplete information about qualifications is provided in accordance with appendices 8,9,10,11 to the tender documentation.
The court's conclusions that the above information was also not provided to T-G LLP are also legitimate, the application should have been rejected from participation in the tender. These conclusions of the court are confirmed by the "Information about the qualifications ..." of T-G LLP available in the case file. In this regard, the court lawfully satisfied the plaintiff's claim to declare illegal and cancel the protocol on the results of the competition.
The arguments of the cassation appeal that the Department carried out desk control outside the limits of the stated requirements cannot be taken into account. The complaint of T-G LLP was filed within the time limit prescribed by law, and an addendum to the complaint was subsequently filed. Desk control was conducted within the framework of this competition, all complaints received were considered within the stated arguments, and a Notification was issued based on the results of desk control.
The Plaintiff has not provided any arguments refuting the very content of the contested Notice. The conclusions of the courts on the refusal to satisfy the plaintiff's claim for recognition as illegal and cancellation of the notification of the elimination of violations identified by the results of desk control are legitimate and based on the norms of the law.
Taking into account the satisfaction of the plaintiff's claims to challenge the protocol on the results of public procurement, the courts legitimately satisfied the claims to invalidate the public procurement contract.
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