Recognition as illegal and cancellation of the protocol on the results of the public procurement competition
No. 6001-24-00-6ap/3275 (2) dated March 13, 2025
Plaintiff: LLP "A"
The defendants: KSU "Comprehensive School" (hereinafter referred to as the School), RSU "Department of Internal State Audit" (hereinafter referred to as the Department)
Interested person: IP A.
The subject of the dispute: on declaring illegal and canceling the protocol on the results of the public procurement tender, invalidating the public procurement contract dated May 24, 2024, on forcing a review of the results of the public procurement tender, declaring illegal and canceling the notification on the elimination of violations identified by the results of desk control
Review of the cassation complaints of the defendant and the person concerned
PLOT:
On March 20, 2024, the School held a public procurement competition for the lot "Catering services for children".
The following potential suppliers took part in the competition: IP A., LLP "2018", LLP "A".
In accordance with the protocol of the results of public procurement dated April 19, 2024, IP A., the potential supplier who took the second place, LLP "A", was determined the winner of the competition.
The plaintiff of "A" LLP, disagreeing with the protocol of the results, appealed the protocol of the results of the competition to the Department on April 24, 2024.
According to the results of desk control, it was found that in the tender application of IP A. in the information on the qualifications of a potential supplier (Appendix 6), work experience for 2017-2023 is stated, while supporting documents for the period 2017, 2019, 2020 and 2021 are not fully presented. In this regard, the competition commission unreasonably awarded IP A. 5 points based on experience in the service market over the previous 7 years in the relevant region, whereas 3 points should have been applied (for 2018, 2022, 2023).
On May 14, 2024, the Department issued a notification on the elimination of violations identified by the results of desk control.
Pursuant to the notification on May 15, 2024, the School reviewed the results of the public procurement competition, and in accordance with the protocol of the results, IP A. was again recognized as the winner, and the plaintiff was identified as the potential supplier who took second place.
Having disagreed with the stated results of the competition, the plaintiff appealed to the court with this claim.
Judicial acts:
1st instance: the claim is satisfied. It was decided: to declare illegal and cancel the protocol on the results of the open tender dated May 15, 2024; to invalidate the public procurement contract dated May 24, 2024, concluded between the School and IP A.; to oblige the School to review the results of the public procurement competition within 10 (ten) working days from the date of entry into force of the court decision; to declare illegal and cancel the Department's notification on the elimination of violations identified by the results of desk control dated May 14, 2024.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case are upheld.
Conclusions: according to the information from the database "Payment of pensions and allowances" of the Information Exchange System of Law enforcement and special agencies of the Republic of Kazakhstan (hereinafter referred to as SIOPSO), as of September 2, 2024, mandatory pension contributions from individual entrepreneur A. were not paid to employees (Ch., R., V., K., S., E., H., K., M.). They were made, while for the period from January to August 2024, mandatory pension contributions were transferred to employees by previous employers.
It was also established that the tender application of IP A. does not contain documents confirming the existence of employment relations between cooks, technologists and nutritionists with their previous employers, as specified in the list of Article 35 of the Labor Code of the Republic of Kazakhstan, as required by paragraph 3 of Appendix 7 to the Standard Tender Documentation, except for the track records filled in by IP A.
Thus, the work experience of these employees in their previous places of employment has not been confirmed. According to the SIOPSO, their employment in the sole proprietorship has not been confirmed.
In this regard, the courts came to the correct conclusion that the points are for having a cook, a technologist, a nutritionist and having the required experience.
works submitted by the IP A. competition commission should not be awarded.
The grounds and motives for the decision are set out in detail in judicial acts, specifying the specific provisions of the law to be applied.
These conclusions of the local courts correspond to the circumstances and requirements of the law established in the case, are confirmed by the evidence available in the case file, and comply with the requirements and principles of administrative proceedings.
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