Private definitions are issued for public procurement disputes  

They are mainly related to non-compliance with paragraph 4 of Article 12 of the Law "On Public Procurement", according to which the customer is obliged to file a lawsuit with the court no later than 30 calendar days from the day when he became aware of the supplier's violation of the law on public procurement to recognize such a potential supplier as an unscrupulous participant in public procurement. According to the explanations given in paragraph 3 of the regulatory decree of the Supreme Court "On the application of legislation on public procurement by courts", the customer is obliged to file a lawsuit in court within the above period to recognize a potential supplier as an unscrupulous participant in public procurement. This deadline is prohibitive, and its expiration is the basis for refusing to satisfy an application for recognition of a potential supplier as an unscrupulous participant in public procurement. For example, a private definition of the Council of Economic and Social Council of the city of Nur-Sultan dated March 28, 2018 drew the attention of the NAO State Corporation Government for Citizens (hereinafter referred to as the NAO) to violations of the rule of law identified during the consideration of a civil case against the NAO IP "A" for recognition as an unfair participant in public procurement. In particular, under the terms of the contract on public procurement of goods, IP "A" assumed an obligation to supply the keyboard by December 31, 2017, but did not fulfill it on time. In turn, the NAO, violating the 30-day deadline stipulated by law, appealed to the court only on February 6, 2018, which was the basis for rejecting the claim and collecting from the defendant the amount paid under the terms of the concluded contract. Similar specific definitions are issued by almost all the SMEs of the republic, since violations committed by customers create conditions for unscrupulous suppliers to evade statutory liability and indicate inadequate control over public procurement, lack of organization in work, and ignorance of the law. During the analysis, the facts of concluding public procurement contracts by customers on conditions that prevent the presentation of claims to suppliers were revealed. For example, the Ministry of Energy of the city of Nur-Sultan issued a private determination regarding JSC "A", which on December 29, 2017 concluded an agreement with IP "NIET" on public procurement with a validity period until December 31, 2017. At the same time, the delivery time is agreed – within 20 calendar days. By virtue of paragraph 3 of Article 383 of the Civil Code, if the contract provides for the term of the contract, the expiration of this period entails the termination of the obligations of the parties under the contract.

Private definitions are issued for public procurement disputes  

This provision of the law prevents the defendant from being recognized as an unscrupulous participant in public procurement, since the contract expired before the delivery date of the goods. At the same time, the established circumstances may indicate the premeditation of concluded contracts on terms that formally exclude the possibility of bringing officials to justice. The courts also draw attention by issuing a private ruling to the revealed facts of concluding contracts in violation of paragraph 22 of Article 43 of the Law "On Public Procurement", according to which the minimum period for the delivery of goods, performance of works, provision of services under the contract should not be less than the time spent on the supply of goods, including its manufacture, delivery, execution work, provision of services, but not less than 15 calendar days. For example, a private definition of the Council of Economic and Social Council of the Mangystau region dated March 11, 2019 in a civil case against SEZ MA JSC against IP "N" for recognition as an unfair participant in public procurement drew the attention of the plaintiff's management to conclude a contract with the condition of delivery of goods within 2 calendar days. Courts also lawfully respond to violations by government agencies of the requirements of the law when fulfilling obligations under public procurement contracts. Thus, by a private ruling of the Ministry of Economic and Social Affairs of the Pavlodar region dated February 26, 2019, in a civil case filed by IP Medina against the State Institution "Police Department of the Pavlodar Region", the management of the state body was informed about taking response measures against officials who made an untimely transfer of funds to a contractor whose work was carried out on the basis of a relevant act. This circumstance led to the court collecting from budgetary funds in favor of the contractor the amount of the penalty for 22 days of delay in the cost of services provided, which is a failure to comply with the requirements of Article 4 of the Law "On Public Procurement", according to which one of the fundamental principles of legal regulation is the optimal and efficient use of money used for public procurement. It follows from the responses to private definitions in cases of this category that persons responsible for conducting public procurement are subject to disciplinary action in the form of warnings, reprimands, and severe reprimands. The study of the submitted civil cases showed that the violation of the requirements of the Law "On Public Procurement" entailed the administrative responsibility of an official of Astana Regional Electric Grid Company JSC.

Thus, in the private ruling of the Council of Energy and Energy of the city of Nur-Sultan dated October 2, 2018 in a civil case against Astana Regional Electric Grid Company JSC for recognizing C LLP as an unscrupulous participant in public procurement, the court legitimately stated that the actions of the customer's officials contain signs of an administrative offense provided for in Part 10 of Article 207 of the Administrative Code. This article of the Administrative Code provides for administrative liability of officials in the amount of 30 MCI for failure or untimely application of the customer to the court with a claim for recognition of potential suppliers or suppliers as unscrupulous participants in public procurement in the following cases:: 1) provision by a potential supplier or supplier of false information on qualification requirements and (or) documents affecting the competitive price offer; 2) non-fulfillment by the supplier of obligations under the public procurement contract concluded with him; 3) improper fulfillment by the supplier of obligations under the public procurement contract concluded with him, except in cases stipulated by the legislation of the Republic of Kazakhstan on public procurement. Pursuant to a private determination by the Department of Internal State Audit for the city of Nur-Sultan, a protocol on an administrative offense was drawn up against the chairman of the Board of the above-mentioned JSC, and he was brought to administrative responsibility in the form of a fine of 36,075 tenge. A similar response took place as a result of the execution of a private definition of the Almaty Region Council of Economic and Social Council dated May 28, 2018 in a civil case against the SCCP "Ushkonyr College of Water Management" LLP "N" for recognition as an unfair participant in public procurement, a protocol on an administrative offense was drawn up against the deputy director of the SCCP under paragraph 2 of part 11 of Article 207 of the Administrative Code and a fine of 15 MCI was imposed – 36,075 tenge.

The courts are allowed to make private determinations against improper persons, for example, in a private ruling dated March 6, 2019, in a civil case filed by IP Seidaliev Kenesary Naurzbayuly against the KSU "Bilim-Innovation Boarding School" of the Mangystau Region Department of Education regarding the invalidation of contracts against the defendant, a private ruling was issued regarding violations made in the course of public procurement, by addressing it to the Department of Education of Aktau city. Whereas from the name of the legal entity it is clearly seen that it is accountable to the Department of Education of the Mangystau region. This circumstance led to the need to redirect the private definition to the appropriate addressee, from whom no response on execution has been received so far. 

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