Miscalculation of the preventive period for going to court

There are situations when the incorrect calculation of the preventive period for applying to the court established by paragraph 4 of Article 11 of the law is the basis for the cancellation of judicial acts. Example. By the resolution of the Judicial Board of the Supreme Court for civil cases dated August 18, 2020, the judicial acts of the courts of Kostanay region on the rejection of the claim of the state institution "Department of education of the akimat of Arkalyk" on the recognition of "M" LLP as an unfair participant in public procurement were canceled. Local courts, rejecting the claim, based on the fact that the institution for recognizing the supplier as an unfair participant in public procurement missed the thirty-day period established by paragraph 4 of Article 12 of the law in order to apply to the court with a claim. It is indicated that the period established by law for filing a claim is calculated from the date of registration of the contract with the authorized body. The nodes of the local courts were found unfounded by the Cassation judicial board. It was established that a public procurement contract was concluded between the parties for the current repair of the soft roof of the Karatogai general secondary school. The term of work is 30 calendar days from the date of signing the contract. Registration of the contract with the territorial Treasury body was carried out on September 12, 2019. With the materials of the case, it was confirmed that the partnership did not fulfill its obligations in a timely manner. According to Article 177 of the civil code, the statute of limitations is the period of time during which a claim caused by a violation of the rights of a person or a legally protected interest can be satisfied.

Miscalculation of the preventive period for going to court

The expiration of the statute of limitations in accordance with article 180 of the civil code begins on the day when a person became aware of or should have known about the violation of the right. In accordance with subparagraph 3) of Paragraph 4 of Article 12 of the law, in the case specified in subparagraph 1) of part one of this paragraph, the organizer of public procurement, the customer is obliged to apply to the court with a claim for recognition of such a potential supplier or supplier as an unfair participant in public procurement no later than thirty calendar days from the date of their knowledge of the fact of violation of the legislation of the Republic of Kazakhstan on public procurement by a potential supplier or supplier. Thus, from the meaning of these provisions of the law, the expiration of the statute of limitations begins on the day when a person became aware of or should have known about a violation of the right. The beginning of the statute of limitations in a subjective, as well as objective sense, is combined with the moment of actual or appropriate determination of the violation of the law. The institution became known about the failure of the partnership to perform work in October 2019. The deadline for fulfilling the obligations assumed in accordance with the agreement is set as October 12, 2019. Therefore, from the specified date, the time limit for filing a claim for the protection of their violated rights and legitimate interests is subject to calculation. The institution applied to the court with a claim to recognize the partnership as an unfair participant in public procurement on October 15, 2019, that is, the deadline established by law was missed by the plaintiff. In practice, there are cases when the customer applied to the court with a claim to recognize the supplier as an unfair participant in public procurement on the basis of improper performance of obligations under the contract in connection with the failure to introduce security for the execution of the contract in subsequent financial years. Article 26 of the law allows the supplier to ensure the execution of the contract at the beginning of each current financial year, provided that the contract is concluded for a period of more than one financial year.

In this regard, if the supplier did not introduce security for the fulfillment of obligations under the contract in the last financial year, the question arises as to whether the customer's claims to recognize the supplier as an unfair participant in public procurement on the grounds of non-fulfillment or improper performance of obligations under the contract are legitimate, since failure to introduce security for execution is recognized as evasion from concluding the contract, and the register is formed on the basis of a decision of the authorized body. At the same time, the courts should be guided by the following: paragraph 1 of Article 44 of the law provides that if a potential supplier recognized as the winner or took second place did not submit to the customer a signed Public Procurement Contract within the time limits established by law or entered into a public procurement contract, ensuring the execution of the public procurement contract and (or) an amount in accordance with Article 26 of the law, such a potential supplier is recognized as evading the conclusion of a public procurement contract.

In accordance with Paragraph 22 of the 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 February 28, 2015 No. 694, if a potential supplier evades the signing of a public procurement contract in paper form or evades the conclusion of a public procurement contract by, within three working days from the date of evasion of the customer from concluding a public procurement contract, the customer submits information about such a potential supplier or supplier in electronic form through the web portal to the authorized body in accordance with Annex 3 to these rules. In accordance with subparagraph 4) of paragraph 416 of the rules for Public Procurement, approved by the order of the minister of Finance dated December 11, 2015 No. 648, it must be contained in the contract on ensuring the execution of the contract under Paragraph 19 of Article 43 of the law and (or) on termination of the contract at any stage in case of evasion from entering into the contract by not entering the amount in accordance with Article 26 of the law. If the supplier, within three working days from the date of receipt of the notification of the intention to terminate the contract through the web portal, does not introduce security for the fulfillment of the contract, the customer sends a notification of termination of the contract.

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