On recognizing the actions of the procurement organizer as illegal
No. 6001-23-00-6ap/352 dated 19.10.2023
Plaintiff: A-NS LLP (hereinafter referred to as the Partnership)
The defendant: Akimat of the city (hereinafter – Akimat)
Interested party: K SK+ LLP
The subject of the dispute: on the recognition of actions within the framework of the consideration of the complaint dated April 20, 2022 as illegal
Review of the cassation appeal of the person concerned.
PLOT: On January 08, 2022, the public procurement tender No. 6574363-1 "Sanitary cleaning of the inner-block areas of site No. 2" was announced. The customer is the State Institution "Akim's Office of the district". The organizer is the State Institution "Asset Management and Public Procurement" (hereinafter referred to as Asset Management).
On March 03, 2022, according to the results of the competition, A-NS LLP was recognized as the winner of lot No. 47492616 OK1, IP "T.K." was the potential supplier who took the second place. On March 04, 2022, a complaint was filed by a potential supplier of BK A LLP with the Department of Internal State Audit (hereinafter referred to as the Department) through a web portal. On March 09, 2022, additions to the complaint were submitted through the Unified Platform for receiving and processing all appeals from citizens of e-otinish. On March 28, 2022, following the results of the Department's review of complaints, the Asset Management issued a notification on the elimination of violations identified by the results of desk control No. 710000000-4-6-165989 (hereinafter referred to as the notification).
On March 30, 2022, the plaintiff filed a complaint with the State Institution "Committee of Internal State Audit of the Ministry of Finance of the Republic of Kazakhstan" (hereinafter referred to as the Committee) to the notification. On April 11, 2022, the competition commission reviewed the results of the competition, according to the results of which K SK+ LLP was recognized as the winner, BK A LLP was recognized as the potential supplier who took second place. On April 20, 2022, the plaintiff filed a complaint with the akimat against the actions of the Asset Management, in which he asked to recognize the latter's actions to cancel the results the contest is illegal.
In the appeal, the plaintiff indicated that on March 30, 2022, a complaint was filed with the Committee against the notification. The procurement organizer, without waiting for a decision based on the results of the complaint, began executing the notification on March 31, 2022. On April 25, 2022, the Committee responded to the plaintiff's appeal. On May 20, 2022, the akimat provided the plaintiff with a response, which actually considered his complaint.
In this regard, the plaintiff asked to recognize the actions of the procurement organizer to cancel the results of the tender based on the notification dated March 28, 2022 as illegal.
Judicial acts:
1st instance: the claim is satisfied. The actions of the Akimat to consider the complaint of A-NS LLP dated April 20, 2022 were declared illegal.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: the courts of the first and appellate instances came to the correct conclusion about the illegality of the akimat's action, since the plaintiff's complaint against the organizer of public procurement was not within the defendant's authority, the complaint had to be redirected to the authorized administrative body no later than three working days from the date of its receipt. The arguments presented in the cassation appeal do not refute the court's conclusions and were the subject of research and proper assessment by the local courts.
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