On declaring illegal and canceling the protocol on the results of the public procurement tender, invalidating the public procurement contract
No. 6001-24-00-6ap/3275 (2) dated March 13, 2025
Plaintiff: LLP "A"
The defendants: KSU "Comprehensive School" (hereinafter referred to as the School), RSU "Department of Internal State Audit" (hereinafter referred to as the Department)
Interested person: IP A.
The subject of the dispute: on declaring illegal and canceling the protocol on the results of the public procurement tender, invalidating the public procurement contract dated May 24, 2024, on forcing a review of the results of the public procurement tender, declaring illegal and canceling the notification on the elimination of violations identified by the results of desk control
Review of the cassation complaints of the defendant and the person concerned
PLOT:
On March 20, 2024, the School held a public procurement competition for the lot "Catering services for children".
The following potential suppliers took part in the competition: IP A., LLP "2018", LLP "A".
In accordance with the protocol of the results of public procurement dated April 19, 2024, IP A., the potential supplier who took the second place, LLP "A", was determined the winner of the competition.
The plaintiff of "A" LLP, disagreeing with the protocol of the results, appealed the protocol of the results of the competition to the Department on April 24, 2024.
According to the results of desk control, it was found that in the tender application of IP A. in the information on the qualifications of a potential supplier (Appendix 6), work experience for 2017-2023 is stated, while supporting documents for the period 2017, 2019, 2020 and 2021 are not fully presented. In this regard, the competition commission unreasonably awarded IP A. 5 points based on experience in the service market over the previous 7 years in the relevant region, whereas 3 points should have been applied (for 2018, 2022, 2023).
On May 14, 2024, the Department issued a notification on the elimination of violations identified by the results of desk control.
Pursuant to the notification on May 15, 2024, the School reviewed the results of the public procurement competition, and in accordance with the protocol of the results, IP A. was again recognized as the winner, and the plaintiff was identified as the potential supplier who took second place.
Having disagreed with the stated results of the competition, the plaintiff appealed to the court with this claim.
Judicial acts:
1st instance: the claim is satisfied. It was decided: to declare illegal and cancel the protocol on the results of the open tender dated May 15, 2024; to invalidate the public procurement contract dated May 24, 2024, concluded between the School and IP A.; to oblige the School to review the results of the public procurement competition within 10 (ten) working days from the date of entry into force of the court decision; to declare illegal and cancel the Department's notification on the elimination of violations identified by the results of desk control dated May 14, 2024.
The implementation of architectural, urban planning and construction activities should be based on the conditions for ensuring the safety requirements of the population, territories and settlements established by law.
No. 6001-24-00-6ap/2211 dated March 11, 2025
Plaintiff: P8 LLP
Respondent: GU Department of Urban Planning and Urban Studies" (hereinafter referred to as the Department)
The subject of the dispute: on the recognition of the illegal and cancellation of the decision on the refusal to approve the draft and the obligation to approve the draft
Review of the plaintiff's cassation complaint PLOT:
Based on the purchase and sale agreement dated September 21, 2020, P8 LLP is the owner of a land plot with an area of 0.5006 hectares, located at the address: city of A., B Street, with the intended purpose for the construction of a multifunctional residential complex with maintenance facilities and underground parking.
On December 31, 2020, the plaintiff received an architectural and planning assignment for the design of a construction site on the specified land plot.
On June 22, 2023, the plaintiff submitted an application for approval of a draft design for the above-mentioned facility.
On July 5, 2023, the defendant issued a decision to refuse to approve the draft to the plaintiff, which is motivated by the fact that they had previously issued a reasoned refusal dated October 21, 2021. In addition, the plaintiff needs to obtain approval of the draft design from the City Planning Council.
This circumstance served as the basis for the appeal of P8 LLP to the court with the above requirements.
Judicial acts:
1st instance: the claim is partially satisfied. It was decided: to oblige the Management to coordinate the P8 LLP draft design of an apartment building with maintenance facilities and underground parking, located at the address: city A., B, within 10 working days from the date of entry into force of the court decision; to satisfy the claim regarding the recognition of illegal and cancellation of the motivated refusal of the Management of 5 July 2023 – refuse.
Appeal: the decision of the court of first instance has been changed. The court's decision in the satisfied part of the claim of P8 LLP to the Management on the assignment of the obligation to coordinate the draft design of an apartment building with maintenance facilities and underground parking, located at the address: city A., B, was canceled and a new decision was made in this part to dismiss the claim.
The rest of the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case are upheld.
Conclusions: according to the information from the database "Payment of pensions and allowances" of the Information Exchange System of Law enforcement and special agencies of the Republic of Kazakhstan (hereinafter referred to as SIOPSO), as of September 2, 2024, mandatory pension contributions from individual entrepreneur A. were not paid to employees (Ch., R., V., K., S., E., H., K., M.). They were made, while for the period from January to August 2024, mandatory pension contributions were transferred to employees by previous employers.
It was also established that the tender application of IP A. does not contain documents confirming the existence of employment relations between cooks, technologists and nutritionists with their previous employers, as specified in the list of Article 35 of the Labor Code of the Republic of Kazakhstan, as required by paragraph 3 of Appendix 7 to the Standard Tender Documentation, except for the track records filled in by IP A.
Thus, the work experience of these employees in their previous places of employment has not been confirmed. According to the SIOPSO, their employment in the sole proprietorship has not been confirmed.
In this regard, the courts came to the correct conclusion that the points are for having a cook, a technologist, a nutritionist and having the required experience.
works submitted by the IP A. competition commission should not be awarded.
The grounds and motives for the decision are set out in detail in judicial acts, specifying the specific provisions of the law to be applied.
These conclusions of the local courts correspond to the circumstances and requirements of the law established in the case, are confirmed by the evidence available in the case file, and comply with the requirements and principles of administrative proceedings.
Cassation: the appeal ruling is upheld.
Conclusions: according to paragraph 16 of the Rules for the formation of the architectural appearance and urban planning of the city of A., approved by the decision of the extraordinary VI session of the Maslikhat of the city of A. dated May 31, 2021 No. 49, the minimum size of gaps (household distances) between the long sides of multi-apartment residential buildings of linear type:
when building houses: 4-5 floors of at least 20 meters;
when building houses: 6 – 12 floors of at least 30 meters;
when building houses of 13-16 floors at least 48 meters;
when building houses: 17 floors and above by less than 50 meters. According to the preliminary draft from the "Master Plan" part, it follows,
that the size of the gaps between linear residential buildings, the long side of the projected 12-storey residential complex and the long side of the 13-storey residential complex "K" is 26.55 meters, whereas according to the above Rules – 2 should be at least 30 meters.
Also, the distance from the projected 12-storey residential complex to the existing 13-storey residential complex "M" is 21.81 meters, given that linear type objects should be at least 30 meters away.
In addition, the distance from the projected 12-storey residential complex to the existing 23-storey linear type residential complex on the west side is not specified, while the distance should correspond to 50 meters.
This flaw in the draft design is significant, as it may affect the rights and legitimate interests of the residents of the residential complex "K", residential complex "M", the owner of the two-storey building and the 23-storey residential complex.
The conclusions of the court of first instance that the draft design is not subject to consideration by the Urban Planning Council, since the legal relations between the parties arose before the adoption of the resolution of the Akimat of the city dated August 19, 2022 "On the establishment of the Urban Planning Council of the city of A." (hereinafter referred to as the Resolution of the Akimat), the court of appeal did not take into account, since the legal relations on The dispute in question arose after the adoption of the Resolution of the Akimat, since the application for approval of the draft was submitted on June 22, 2023.
According to paragraph 1 of Article 8 of the Law of the Republic of Kazakhstan dated July 16, 2001 No. 242 "On Architectural, Urban planning and Construction activities in the Republic of Kazakhstan", the implementation of architectural, urban planning and construction activities should be based on the conditions for ensuring the requirements established by law for the safety of the population, territories and settlements from the effects of dangerous (harmful) natural and man-made, anthropogenic phenomena and processes.
It is also taken into account that the projected facility is located in the strike zone of the tectonic faults of the city.
The report provided by the plaintiff on engineering and geological surveys on the construction site of an apartment building from 2020, which states that the requested site is located outside the zone of possible occurrence of a tectonic fault, was not accepted as written evidence in the case, since the specialists were not warned about criminal liability for knowingly giving a false conclusion.
Since the circumstances of the case were established correctly, and the rules of law were applied correctly by the court of appeal, the collegium found no grounds for canceling or changing judicial acts.
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