Jurisdiction and subordination of civil cases

In accordance with Part 1 of Article 27 of the CPC, disputes arising from public procurement are subject to the jurisdiction of specialized interdistrict economic courts, since the parties are legal entities, individuals engaged in individual business activities without forming a legal entity. Claims arising from public procurement contracts that specify the place of execution may also be filed at the place of execution of the contract in accordance with part 6 of Article 30 of the CPC. Article 31 of the CPC contains grounds for exclusive jurisdiction. A study of judicial practice has shown that courts generally comply with the rules on jurisdiction. However, there are isolated cases of violations of jurisdiction. Thus, by a resolution of the judicial board for civil cases of the Atyrau Regional Court dated March 3, 2020, the decision of the specialized interdistrict Economic court (hereinafter referred to as the SMEC) of the Atyrau region was overturned in connection with a violation of the rules of jurisdiction with the transfer to the SMEC of the Kyzylorda region. In accordance with Part 4 of Article 31 of the CPC, claims against carriers arising from contracts for the carriage of goods, passengers or baggage are brought to court at the location of the carrier (transport organization, individual entrepreneur). The legislator has established exclusive jurisdiction for this category in order to exclude the extension of alternative or contractual jurisdiction to these legal relations. The Judicial Board found that the subject of the concluded contract was the transportation of textbooks, educational and methodical complexes.

Jurisdiction and subordination of civil cases

The defendant, T LLP, is a transport organization, a carrier, located at 26 Maulenova Street, Kyzylorda city. Accordingly, the claim was to be filed in court at the location of the carrier. In another case: on November 19, 2019, by the decision of the Council of Economic Cooperation of the North Kazakhstan region, the civil case on the claim of LLP "S" to the State Institution "Committee on Water Resources of the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan" on the obligation to provide documents was sent under the jurisdiction of the Council of Economic Cooperation of the city of Nur-Sultan. The court assumed that the defendant's location was the Committee on Water Resources of the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan.: The city of Nur-Sultan, Yesil district, Mangilik El Avenue, 8. Accordingly, the case is under the jurisdiction of the Ministry of Economic and Social Affairs of the city of Nur-Sultan. By the ruling of the Judicial Board for Civil Cases of the North Kazakhstan Regional Court, the ruling of the court of first instance was overturned, and the civil case was returned to the court of first instance for consideration on its merits. The Board found that, according to the statement of claim and case materials, SK-Maximum LLP filed a lawsuit against the defendant based on the defendant's failure to fulfill obligations under the public procurement contract dated June 27, 2019 No. 26 for construction and installation works in the Yesilsky district of the North Kazakhstan region for the construction of a culvert gateway on Lake Baikal. Bolshoy Tarangul in the Yesilsky district of North Kazakhstan region". That is, the place of execution of the contract is oz. Bolshoy Tarangul in the Yesilsky district of North Kazakhstan region. The appellate judicial Board, referring to the provisions of Part 6 of Article 30 of the CPC, reasonably pointed out that the choice of territorial jurisdiction was attributed by the procedural law to the plaintiff's right, and therefore the court of first instance had no reason to refer the case to the court at the defendant's location in the city of Nur-Sultan, since when accepting the case There are no violations of the rules of jurisdiction. An important novelty of the Law in the field of regulation of public procurement, which entered into force on January 1, 2016, is the norm establishing a new procedure for forming a register of unscrupulous participants in public procurement. Thus, according to paragraph 5 of Article 12 of the Law, the register of unscrupulous participants in public procurement provided for in subparagraph 2) paragraph 4 of article 12, namely suppliers who evaded the conclusion of a public procurement contract after being recognized as the winner, is formed on the basis of a decision of the authorized body to recognize potential suppliers as unscrupulous participants in public procurement.

The register of unscrupulous participants in public procurement provided for in subitems 1), 3) of paragraph 4 of Article 12 of the Law is formed on the basis of court decisions that have entered into force. Paragraph 1 of article 44 of the Law stipulates that if a potential supplier, recognized as the winner or runner-up, has not submitted a signed public procurement contract to the customer within the time limits established by Law, or, having concluded a public procurement contract, has not provided security for the execution of the public procurement contract and (or) the amount in accordance with article 26 of the Law, then such a potential supplier is recognized as having evaded the conclusion of a public procurement contract. Thus, potential suppliers identified by the winners who evaded the conclusion of a public procurement contract are included in the register based on a decision of the authorized body. However, in practice, there are cases when the customer, in violation of paragraph 5 of Article 12 of the Law, if the claim is not under jurisdiction, applies to the court with a claim against the supplier for inclusion in its register of unscrupulous participants in public procurement, due to the failure to ensure the execution of the contract within the prescribed time. Thus, by the decision of the Council of Economic and Social Council of the city of Nur-Sultan dated June 25, 2018, the civil case proceedings on the claim of the State Enterprise for Municipal Hospital No. 2 of the Akimat of Astana against Adil Ink LLP for recognition as an unfair participant in public procurement were terminated under subparagraph 1) of Article 277 of the CPC, as not subject to consideration in civil proceedings.. The plaintiff's claim was based on the fact that the defendant had failed to provide security for the execution of the contract and was found to have evaded the conclusion of a public procurement contract. A similar example. By the determination of the Ministry of Economic and Social Affairs of the Pavlodar region dated January 8, 2020, the proceedings in the civil case on the claim of the KGP for the Pavlodar Regional Ambulance Station against T LLP for recognition as an unfair participant in public procurement, with reference to subparagraph 1) of Article 277 of the CPC were terminated. The plaintiff motivated the claims by the fact that according to the results of public procurement by requesting price proposals, the defendant was recognized as the winner of the tender for the supply of goods totaling 285,000 tenge. However, the defendant, in violation of the requirements of paragraph 9 of Article 43 of the Law, did not contribute the amount to ensure the performance of the contract. Thus, having wetted the body, customers continue to file a lawsuit in court. Judges, by accepting such statements into their proceedings, artificially increase the number of cases considered (terminated under paragraph 1) of Article 277 of the CPC in 2018 – 277; in 2019 - 273; for 9 months 2020 – 451 cases). The attention of the courts should be drawn to the fact that such statements of claim are subject to rejection at the acceptance stage in accordance with subparagraph 1) part 1 of Article 151 of the CPC, explaining that inclusion in the register of unscrupulous participants in public procurement in case of evasion from concluding a contract is based on a decision of the authorized body, and not on the basis of a court decision (as outside the jurisdiction of the court). At the same time, courts should distinguish disputes arising on the basis of a public procurement tender, which are regulated by the Rules for Public Procurement using a special procedure approved by Resolution No. 1200 of the Government of the Republic of Kazakhstan dated December 31, 2015, from disputes where purchases were carried out on a general basis. The requirement introduced by paragraph 5 of Article 12 of the Law that the register of unscrupulous participants in public procurement provided for in subparagraph 2) paragraph 4 of article 12, namely suppliers who have evaded the conclusion of a public procurement contract, is formed on the basis of a decision of the authorized body and it is not applicable to disputes arising in the framework of public procurement using a special procedure.

Jurisdiction and subordination of civil cases

According to the current Rules for the formation and maintenance of registers in the field of public procurement, approved by Order of the Minister of Finance of the Republic of Kazakhstan dated December 28, 2015 No. 694, inclusion in the register of unscrupulous participants in public procurement through the web portal is carried out automatically based on a decision of the authorized body taken through the web portal. Meanwhile, paragraph 10 of Chapter 4 of the Rules for Public Procurement using a Special Procedure, approved by Resolution No. 1200 of the Government of the Republic of Kazakhstan dated December 31, 2015 (hereinafter – Rules), provides that public procurement by competitive method is carried out without posting on the web portal of public procurement and the Internet resource of customers notices of public procurement by competitive method, texts of tender documentation, signed protocols of opening envelopes with applications for participation in the tender, protocols on preliminary admission to participate in the tender, admission and results of state procurement using the competition method.

That is, the web portal of public procurement does not contain data on the tender conducted using a special procedure. Paragraph 52 of the Rules stipulates that if a potential supplier, recognized as the winner, has not submitted a signed public procurement contract to the customer within the time limits established by Law, then such a potential supplier is recognized as having evaded the conclusion of a public procurement contract. In accordance with subparagraph 1) According to paragraph 53 of the Rules, if a potential supplier identified by the winner of public procurement is found to have evaded the conclusion of a public procurement contract, the customer withholds the security of the bid submitted by him and applies to the court with a claim for recognition of such a potential supplier as an unscrupulous participant in public procurement. Thus, if a public procurement tender was conducted using a special procedure in accordance with the above-mentioned Rules, then potential suppliers identified by the winners who evaded the conclusion of a public procurement contract on the grounds provided for in paragraph 1 of article 44 of the Law are subject to inclusion in the register of unscrupulous participants in public procurement based on a court decision. Taking into account the above, it is now necessary to clarify in the legislative order the provisions of paragraph 5 of Article 12 of the Law concerning the grounds for including potential suppliers identified by the winners who evaded the conclusion of a public procurement contract using a special procedure in the register of unscrupulous participants, or clarifying these provisions by making additions to the regulatory resolution of the Supreme Court of the Republic of Kazakhstan. 

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