On recognition as illegal and cancellation of the protocol on the results of the competition and the obligation to eliminate violations by reviewing the results of the competitions
No. 6001-25-00-6ap/661 dated May 13, 2025
The plaintiff: IP "Z.A." (hereinafter referred to as IP)
Defendants: State Institution "Management of Assets and Public Procurement" (hereinafter referred to as the Department), State Enterprise for PVC "Gymnasium School" of the Akimat (hereinafter referred to as the School)
The subject of the dispute: the recognition of the illegal and cancellation of the protocol on the results of the competition and the obligation to eliminate violations by reviewing the results of the competitions
Review of the plaintiff's cassation complaint PLOT:
The sole proprietor participated in a competition for the provision of catering services for children at School.
According to the results of the competition, IP "N.T." was recognized as the winner.
On October 10, 2024, the complaint of the Sole proprietor, DVGA was dismissed.
On October 13, 2024, the plaintiff filed a complaint with the higher authority of the DVGA, the Internal State Audit Committee (hereinafter referred to as the KVGA).
Based on the results of its review, on October 29, 2024, the CGA instructed the Department to consider the appeal, taking into account the arguments of the Sole proprietor.
Having received the decision of the CCGA dated October 29, 2024, the sole proprietor filed a lawsuit on November 12, 2024.
Judicial acts:
1st instance: by the ruling of the court of first instance, the claim was returned, due to missing the deadline for filing a claim in court.
Appeal: the ruling of the court of first instance is left unchanged.
Cassation: judicial acts in this case have been annulled.
The case has been sent to the court of first instance for consideration on the merits.
Conclusions: in accordance with the first part of Article 136 of the CPC, claims for challenging coercion are filed with the court within one month from the date of delivery of the decision of the body considering the complaint, based on the results of the complaint review. In case the law does not provide for
pre-trial procedure or there is no body considering the complaint, the claim is filed within one month from the date of delivery of the administrative act or from the moment of notification in accordance with the procedure established by this Code and the legislation of the Republic of Kazakhstan.
According to the seventh part of Article 136 of the CPC, the deadline for filing a claim that has been missed for a valid reason may be restored by the court according to the rules of the CPC. The reasons for missing the deadline for filing a claim in court and their significance for the proper resolution of an administrative case are clarified by the court in a preliminary hearing.
By virtue of the second part of Article 126 of the CPC, the procedural time limits may be restored by the court if they are missed for reasons recognized by the court as valid.
In accordance with paragraph 74 of the "Rules for the organization of meals for students in state secondary education organizations, extracurricular organizations of additional education, as well as the purchase of goods related to the provision of nutrition for children raised and studying in state preschool organizations, educational organizations for orphans and children left without parental care, organizations of technical and vocational, post-secondary education", approved by the Order of the Minister of Education and Science of the Republic of Kazakhstan dated October 31, 2018 No. 598 (hereinafter – Rules), the complaint is considered within the framework of electronic state audit, desk control in accordance with the legislation of the Republic of Kazakhstan on state audit and financial control.
This rule does not prevent a potential supplier from applying to the court to challenge the results of the competition after conducting an electronic state audit or desk control.
However, by virtue of article 60 of the Law of the Republic of Kazakhstan
"On State Audit and Financial Control" (hereinafter referred to as the Audit Law), actions (inaction) of state audit and financial control bodies and (or) their officials may be appealed in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
In the case under consideration, the CCGA is the higher administrative body in relation to the Department, that is, the body reviewing the complaint.
The third part of Article 9 of the CPC establishes that if the law establishes a pre-trial dispute settlement procedure, an appeal to the court may be filed after observing this procedure. Article 91 of the CPC also provides that, unless otherwise provided by law, an appeal to the court is allowed after a pre-trial appeal.
Consideration of a complaint in an administrative (pre–trial) manner is carried out by a higher administrative body, an official (hereinafter referred to as the body reviewing the complaint).
The above legal norms should be understood to mean that the legislator encourages the development of the institution of pre-trial dispute resolution by appealing administrative acts, actions (inaction) out of court, as this is a faster way to restore and protect the rights, freedoms and legitimate interests of applicants. This procedure forms a uniform administrative practice and provides administrative bodies and their officials with the opportunity to independently eliminate deficiencies in their work.
Taking into account the nature and calendar chronology of the plaintiff's actions, the measures taken by him for the pre-trial settlement of the dispute are seen as conscientious fulfillment of his procedural rights and obligations. In such circumstances of the case, the courts should have, but did not implement the tasks and principles of administrative justice, which in this situation include the principles of fairness (Article 8 of the APPC), protection of rights, freedoms and legitimate interests (Article 9 of the APPC), priority of rights (Article 12 of the APPC).
Moreover, the judicial board noted that, based on the results of the examination of the IP complaint, the CCGA instructed the Department to consider the appeal taking into account the arguments of the author of the complaint.
By virtue of article 58-5 of the Audit Act, the appeals Commission makes one of the following decisions based on the results of consideration of an objection or complaint:
on the full or partial satisfaction of an objection or complaint;
the refusal to satisfy an objection or complaint with the justification for making such a decision.
The decision of the appeal commission is made in writing and is binding on the subject of state audit. It follows from the case file that the decision of the CCGA has not been executed.
Neither the department nor the competition commission.
Consequently, the administrative procedure has not been completed and, accordingly, the discussion of the timing of the appeal to the court is unjustified.
In such circumstances, the contested judicial acts were annulled. Since the court of first instance did not consider the claim on its merits,
the case was sent to the court of the specified instance, the cassation appeal was satisfied.
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