Objection to a private complaint by the defendant plaintiff
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To the Court of Appeal for Civil Cases
cases of the Almaty Regional Court
From the plaintiff: LLP _______________ BIN _______________
tel.: _______________ email address: _______________
Defendant: GU _______________
OBJECTION to the Defendant's private complaint/GU _______________ on the definition _______________ Almaty region dated 08/27/20__
According to the statement of Orion LTD LLP by the Definition of the Specialized Interdistrict Economic Court of the Almaty region dated 08/27/20__ №_______________ a decision was made to secure the claim, to suspend the operation of the contract on public procurement of works №_______________ concluded between LLP _______________ and GU _______________ with the suspension of all expenditure transactions on it, pending consideration of the case on the merits and the entry into force of the judicial act on this the case has entered into legal force (hereinafter referred to as the court ruling). As determined by the court on 03.09.20__
By the defendant/GU _______________ A private complaint was filed. The Defendant's private complaint is unfounded and illegal on the grounds listed below. 1. The adopted court ruling is lawful and justified, in accordance with the norms of substantive and procedural law. The need to take interim measures is related to the fact that the contract on public procurement of works №_______________ It was concluded with an improper winner of the competition in gross violation of the legislation on public procurement. The results of unjustified and unlawful assignment of conditional discounts led to the recognition by the Defendant, the Organizer of the competition, of the improper winner of the LLP _______________ and an inappropriate second winner. _______________ Whereas, in reality, the Plaintiff - LLP _______________ must be determined by the winner, and the LLP _______________ The second winner had to be determined. The organizer intentionally lowered the points of the LLP _______________ by 0.2%, benefits have been lobbied and illegally given and points have been raised. _______________ by 3%, LLP _______________ by 3.2%, moreover, LLP _______________ and "TOO _______________ they were not rejected as providing false information. Actions/omissions of the Organizer/State Institution "Public Procurement Department of the Almaty region" and the DVGA of the Almaty region aimed at gross violation of the rights and legitimate interests of the Plaintiff - LLP _______________ led to the conclusion of an agreement with the improper winner of the LLP _______________ and determining the inappropriate second winner of the LLP _______________
In accordance with paragraph 3 of Article 8 of the Civil Code of the Republic of Kazakhstan, the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law. According to paragraph 4 of this article, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation. According to paragraph 5, actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed.
Instead of rejecting the tender application on the grounds of non-compliance with qualification requirements, the Respondent/ State Institution "Public Procurement Department of Almaty region" admitted the Respondent/LLP to the competition _______________ and the Defendant/ LLP _______________ and illegally and unreasonably determined an improper winner and an improper second winner. And the Defendant/ State Institution "Construction Department of Almaty region" illegally and unreasonably concluded an LLP with an improper winner _______________ the above-mentioned agreement. 07/22/20__. the plaintiff filed a complaint with the Defendant/ DVGA in the Almaty region. The DVGA of the Almaty region, by its decision of 08/02/20__, unlawfully refused to satisfy our complaint. And on the same day, that is, 08/02/20__. The defendant/ "Construction Department of the Almaty region" concludes a contract with the improper winner of the Defendant/ LLP _______________ In accordance with paragraph 2 of Article 157 of the Civil Code of the Republic of Kazakhstan, a transaction is declared invalid if the requirements for the form, content and participants of the transaction, as well as for their freedom of expression, are violated on the grounds established by this Code or other legislative acts. In the framework of the civil case under consideration, we are challenging the very fact of the illegal conclusion of the contract, and that this transaction was concluded with an improper winner, is subject to invalidation and cancellation, and we are also appealing against the illegal decision of both the DVGA in the Almaty region and the Organizer, on the basis of which the disputed contract itself and the action/omission of the Defendant himself were concluded./ State Institution "Construction Department of Almaty region" on the fact of illegal conclusion of the contract.
Objection to a private complaint by the defendant plaintiff
In accordance with Article 4 of the Civil Procedure Code of the Republic of Kazakhstan, the objectives of civil proceedings are to protect and restore violated or disputed rights, freedoms and legitimate interests of citizens, the state and legal entities, respect for the rule of law in civil turnover and public law relations, promote peaceful settlement of disputes, prevent offenses and form a respectful attitude towards the law and the court in society. The defendant/ State Institution "Construction Department of Almaty region" cites 3 (three) arguments in a private complaint: 1) "This leads to the untimely disbursement of allocated budget funds, as well as the undermining of the untimely implementation of state programs" and quotes from the message of the President of the Republic of Kazakhstan; 2) Refers to the decision of the DVGA dated 08/02/20__ and that the decision on the plaintiff's complaint was rejected.; 3) Respondent-3 believes that actions to suspend spending operations will hinder the implementation of programs and achieve the goal of developing a sports society among the population. 2. According to the Defendant's first argument.
This argument is untenable because, since taking office, the President of the Republic of Kazakhstan has always emphasized the legality of public procurement and the eradication of corruption in this area. The state program referred to by the Defendant does not mention the implementation of state plans in violation of the norms of current legislation. On May 13, 20__, the Head of State announced on Twitter: "We finally have to restore order in the field of public procurement. Corruption is rampant there, it causes direct damage to national security. Therefore, we will resolutely fight against corruption, including in the field of public procurement."
The Head of State in his message to the people of Kazakhstan dated 09/02/20__ also emphasized that "Public procurement holds a huge reserve (according to some estimates, up to 400 billion tenge per year), which could be used to solve acute social issues. In 2018, the volume of public procurement amounted to 4.4 trillion tenge, of which 3.3 trillion tenge or 75% were carried out in an uncompetitive manner from a single source. It's time to close this "feeder" for officials and all kinds of "stickers". According to Article 4 of the Law of the Republic of Kazakhstan dated December 4, 2015. No. 434-V "On Public Procurement", the basic principles of public procurement are: optimal and efficient spending of money used for public procurement; providing potential suppliers with equal opportunities to participate in the public procurement procedure; fair competition among potential suppliers; openness and transparency of the public procurement process; responsibility of participants in public procurement; prevention of corruption manifestations. In any case, if the Defendants - the State Institution "Public Procurement Department of the Almaty region", the Far Eastern State Administration for the Almaty Region and the State Institution "Construction Department of the Almaty Region" had made a lawful and fair decision that would not have been disputed by anyone, then indeed all the planned significant indicators would have been fulfilled on time. However, this circumstance arose as a result of illegal actions/omissions and decisions of both the Organizer, the DVGA for the Almaty region - the authorized body, and the Customer, who is the Defendant/ State Institution "Construction Management of the Almaty region".
In accordance with paragraph 1 of Article 9 of the Civil Code of the Republic of Kazakhstan, the protection of civil rights is carried out by a court or arbitration by: recognizing rights; restoring the situation that existed before the violation of the right; suppressing actions that violate the right or threaten to violate it; awarding duties in kind; collecting damages, penalties; invalidating the disputed transaction and applying the consequences. its invalidity, the application of the consequences of the invalidity of an insignificant transaction; compensation for moral damage; termination or change of legal relations; invalidation or non-enforceability of an act of a public administration body or a local representative or executive body that does not comply with the legislation of the Republic of Kazakhstan; collection of a fine from a state body or official for obstructing a citizen or a legal entity in acquiring or exercising a right, as well as by other means provided for by legislative acts of the Republic of Kazakhstan. As a result of the illegal decision and action of the Defendants, the Plaintiff lost the right to conclude a contract as required by law.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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