Protection of participants in public procurement
The State Institution "Department of Energy and Housing and Communal Services of the Aktobe region" filed a lawsuit to recognize LLP "A" as an unscrupulous participant in public procurement, arguing that the defendant evaded the obligation. By the decision of the Council of Economic and Social Council of Aktobe region dated December 7, 2018, LLP "A" was recognized as an unfair participant in public procurement. By a decision of the judicial board for Civil Cases of the Aktobe Regional Court dated March 5, 2019, the court's decision was overturned with the issuance of a new decision to dismiss the claim. It was established that the parties signed a public procurement agreement dated April 27, 2017 No. 32 for the construction of an incoming gas pipeline in the village of Araltobe in the Aitekebiysky district of the Aktobe region (hereinafter referred to as the agreement). According to the agreement, the defendant undertook to perform works for a total amount of 262,353,929.60 tenge, the financing is divided into two years: 2017-2018. In satisfying the claim, the court of first instance proceeded from the fact that the defendant evaded the fulfillment of obligations under the contract, and work in the amount of 80,002,293.28 tenge was not completed. Meanwhile, the court ignored the circumstances that led to the violation of the deadline for the completion of the work, and did not take into account that the commissioning work was completed, indicating that the facility was ready for operation.
Protection of participants in public procurement
It follows from the work schedule that in 2017, work on the linear part of the main gas pipeline should be completed by November 10, 2017, as stipulated by the project, however, on November 1, 2017, the author of the project, K LLP, proposes to lay an additional 280 m of high-pressure gas pipeline along the existing M main gas pipeline. At the same time, despite the increase in the volume of work and the cost of pipes, the total estimated cost of construction and installation work has not been changed. According to the project, the construction period is 6 months, in fact - 9 months. Thus, there was a delay in the execution of the contract, but the high-risk construction facility was put into operation, there are no complaints. The contractor agreed to withhold the penalty from the amount of 80,002,293.28 tenge, which was not paid in full.
Paragraph 5 of the regulatory decree of the Supreme Court "On the application of Legislation on public Procurement by Courts" dated December 14, 2012 No. 5 clarified that when considering claims for recognition of suppliers who failed to fulfill or improperly fulfilled their obligations under public procurement contracts concluded with them as unscrupulous participants in public procurement, the courts must take into account the guilt the supplier as the basis of civil liability in accordance with Article 359 of the Civil Code and the resulting negative consequences for the customer, based on the criteria of fairness and reasonableness in accordance with Part 6 of Article 6 of the CPC. Negative consequences should be understood as causing such damage to a party to a contract when it has largely lost what it was entitled to expect at the conclusion of the contract (paragraph 2 of Article 401 of the Civil Code). Considering that the defendant is a small business entity, has a category 1 license to perform work on the construction of gas pipelines, there are no complaints about the quality of the work, he performed work not provided for by the project without additional payment, the penalty was withheld by the customer, based on the criteria of fairness and reasonableness, the appellate judicial board of the Aktobe Regional Court came to a reasonable conclusion about the refusal in satisfaction of the claim for recognition of the defendant as an unfair participant in public procurement.
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