On the recognition of illegal and cancellation of the notification on the elimination of violations identified by the results of desk control

No. 6001-22-00-6ap/1933 dated 02/21/2023

(similarly, case No. 6001-22-00-6ap/2013 dated 02/21/2023)

Plaintiff: Company A LLP

Respondent: RSU "Department of Internal State Audit for the Almaty region"; State Institution "Department of Public Procurement of the Almaty region"; State Institution "Department of Housing and Communal Services, Passenger Transport, Highways and Housing Inspection of the Kerbulak district of the Almaty region"

The subject of the dispute: on the recognition of illegal and cancellation of the notification on the elimination of violations identified by the results of desk control

No. 191010000-4-7-172540 dated May 17, 2022, illegal and cancellation of the results of the competition according to the electronic protocol on the results of the competition dated May 18, 2022

No. 7062001-OK1, invalid contract on public procurement of works in the field of construction dated May 23, 2022 No. 220050/00, concluded between the Housing and Communal Services and LLP "U"

Review of the plaintiff's cassation complaint PLOT:

On March 24, 2022, an open public procurement competition was held for the project: "Reconstruction and construction of a water supply system in the village of Taldybulak, Kerbulak district, Almaty region" (competition). The organizer of the competition is UZ, the customer is housing and communal services.

Contest participants: 1) "Company A" LLP, 2) "U" LLP, 3) "K" LLP,

4) LLP "T", 5) LLP "C", 6) LLP "K", 7) LLP "F", 8) LLP "T".

On April 21, 2022, the protocol on the results of the competition No. 7062001-OK1 recognized the plaintiff as the winner with a conditional discount of 8%, of which 5% based on work experience and 3% of taxes paid.

The second place is taken by U LLP with a conditional discount of 8%, of which 5% based on work experience, and 3% of taxes paid.

According to the complaint of "T" LLP, the DVGA conducted a desk inspection and sent the organizer of the competition a notification on the elimination of violations identified by the results of desk inspection dated May 17, 2022 No. 191010000-4-7-172540 (DVGA Notification). It states that as a result of the recalculation, the conditional discount of the plaintiff for having work experience is 2.8%. This position is due to the fact that of the 25 objects submitted by the plaintiff to the competition for confirmation of work experience, the DVGA did not count 17.

On May 18, 2022, the protocol on the results of the repeated competition recognized U LLP as the winner with a conditional discount of 8%, of which 5% based on work experience and 3% of taxes paid.

The second place is taken by "T" LLP with a similar conditional discount. The plaintiff was awarded a 5.8% conditional discount.

On May 23, 2022, the customer and U LLP signed a contract for public procurement of construction works No. 220050/00 (Contract).

The plaintiff, disagreeing with the results of the desk inspection and the repeated results of the competition, appealed to the court with the above claims, arguing that the DVGA had unlawfully recalculated the conditional discount based on the plaintiff's work experience on objects that had been verified and entered into the electronic depository.

Judicial acts:

1st instance: the claim is satisfied.

Appeal: the decision is overturned, the claim is denied.

Cassation: the decision was overturned, the decision of the first instance was upheld.

Conclusions:

In satisfying the claim, the court of first instance assumed that the DVGA notice disputed by the plaintiff did not contain reasons and justification for rejecting the plaintiff's work experience; the plaintiff's unreported DVGA work experience was to be counted, since it is contained in the electronic depository as appropriate and verified, has the status "confirmed"; the legislation does not provide for rejecting the work experience of a potential supplier obtained as a result of reorganization.

By overturning the decision of the SMAS and rejecting the claim, the court of appeal entered into a discussion on the reorganization of legal entities – LLP "R", LLP "PS" and LLP "Company A" (plaintiff), critically assessing it as an intention to transfer work experience to the plaintiff through reorganization.

The conclusions of the court of appeal do not correspond to the norms of substantive and procedural law by virtue of the following.

Neither the subject matter nor the grounds of the claim are relevant to the issues of the legality of obtaining work experience through the reorganization of legal entities. Such issues would be subject to investigation and evaluation if a claim were brought against such a reorganization and/or the transfer of work experience as a result, as well as in the case of challenging information about work experience included in the electronic depository. At the same time, the actions and decisions of the administrative authorities on these issues were not disputed by anyone in the framework of the claimed claim. In this regard, the judicial board does not enter into the discussion of the court's conclusions in this part and does not give them a legal assessment.

Information about the plaintiff's work experience, submitted by him to the competition, is contained in the electronic depository with the status "confirmed", with the exception of two objects. This was not denied by anyone, and the defendant and the contestants did not appeal in court. The materials of the case and the court of appeal have not established the opposite.

The SCUD of the North Kazakhstan Regional Court ignored the content of the contested notice of the DVGA, which does not contain substantiated arguments for excluding the plaintiff's facilities, which he submitted to the competition to calculate a conditional discount on work experience. Moreover, the arguments of the CGA regarding the application of a conditional discount of 2.8% to the plaintiff, which is indicated in his letter No.-KV/6601 dated May 17, 2022, have not been substantiated.

The Board considered that the court of first instance, lawfully and reasonably applying the above-mentioned norms of the APPC, came to the correct conclusion about the need to declare illegal and cancel the results of the competition dated May 18, 2022 No. 7062001-OK1 and recognition

The contract on public procurement of works in the field of construction dated May 23, 2022 No. 220050/00, concluded between the Housing and Communal Services and U LLP, was invalid, thereby satisfying the claims in full.

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