On evasion of the defendant from fulfilling obligations
State institution" Department of energy and housing and communal services of Aktobe region "appealed to the court with a statement of claim for recognition of ASU-K LLP as an unfair participant in public procurement, arguing that the defendant evaded the fulfillment of obligations. By the decision of the Maes of Aktobe region dated December 7, 2018, ASU-K LLP was recognized as an unfair participant in public procurement. By the resolution of the Judicial Board of the Aktobe Regional Court for civil cases dated March 5, 2019, the court decision was canceled and a new decision was made to refuse to satisfy the claim. It was established that a Public Procurement Agreement No. 32 dated April 27, 2017 (hereinafter referred to as the agreement) was concluded between the parties for the construction of a gas pipeline to the village of Araltobe, Aiteke bi district of Aktobe region. Under the contract, the defendant is obliged to perform work for a total amount of 262,353,929.60 tenge, financing is divided into two years: 2017 - 2018. The court of first instance, having satisfied the claim, based on the fact that the defendant evaded the fulfillment of obligations under the contract, the work in the amount of 80,002,293.28 tenge was not performed. At the same time, the court did not take into account the circumstances that led to a violation of the deadlines for the performance of works and did not take into account the performance of commissioning work, which testifies to the readiness of the facility for Operation.
On evasion of the defendant from fulfilling obligations
From the work schedule, it became known that in 2017, work on the linear part of the main gas pipeline should be completed by November 10, 2017, as provided for in the project, however, on November 1, 2017, the author of the project proposed to build an additional 280 m high-pressure gas pipeline along the existing main gas pipeline "Aiteke bi MG" LLP. At the same time, despite the increase in the volume of work and the cost of pipelines, the total estimated cost of construction and installation works has not changed. The duration of construction according to the project is 6 months, in fact - 9 months. Thus, it was allowed to miss the terms of execution of the contract, but the high-risk construction object was put into operation, there were no protests. The contractor agreed to withhold the forfeit in the amount of 80,002,293.28 tenge, which was not paid in full due to him. In paragraph 5 of the normative resolution of the Supreme Court of December 14, 2012 No. 5 "on the application of the legislation on public procurement", when considering claims on recognition of suppliers who have not fulfilled or improperly fulfilled their obligations under contracts concluded with them on public procurement as unscrupulous participants in public procurement, the courts take into account the criteria of fairness and,
In accordance with Article 359 of the civil code, it is indicated that the supplier's fault should be taken into account as a justification for civil liability and negative consequences for the customer. Damage to the party to the contract, which to a large extent loses the right to hope at the conclusion of the contract, should be understood as negative consequences (Part 2 of Article 401 of the civil code). Considering that the defendant is a small business entity, has a Category 1 license to perform works on the construction of gas pipelines, there are no complaints about the quality of work, he performed works not provided for by the project at no additional cost, the customer withheld the forfeit on the basis of the criteria of fairness and integrity, the appeal judicial board of the Aktobe Regional Court came to a reasonable conclusion on the refusal to satisfy the claim to recognize the defendant as an unfair participant in public procurement.
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