Recognition of illegal regulations on the elimination of violations Department of Internal State Audit
No.6001-23-00-6ap/329 dated 06/22/2023
The plaintiff: State Institution "Department of Education of the Department of Education" (hereinafter referred to as the Department of Education)
Respondent: Russian State Institution "Department of Internal State Audit of the Internal State Audit Committee of the Ministry of Finance of the Republic of Kazakhstan"
The subject of the dispute: on the recognition of the unlawful regulation on the elimination of violations dated 05/19/2022.
Review of the plaintiff's cassation appeal
PLOT:
On January 24, 2022, the Department of Education carried out public procurement using a single source method under items No. 49533745 and No. 49533306 of the Annual Public Procurement Plan for 2022 by directly concluding contract No. 2 with IT LLP for the purchase of services "Services for additional maintenance of computer software "INDIGO: Electronic Kindergarten", "Computer software rental services "INDIGO: Electronic Kindergarten" for a total amount of 7,361,743 tenge.
The choice of a method from a single source by directly concluding an agreement on the above points of the public procurement plan is based on the fact that, according to the comprehensive business license agreement on the transfer of a set of exclusive rights dated 01/10/2022, a private institution (hereinafter referred to as - CHU) "KDS" provided "IT" LLP with the right to use the licensed complex, which includes intellectual property objects: "computer program INDIGO-electronic kindergarten", according to the certificate of state registration of copyright rights dated 07/16/2018, owned by I.I.
On 03/14/2022, an audit event was conducted on the issue of compliance with the legislation of the Republic of Kazakhstan on public procurement when conducting public procurement using a single-source method in the plaintiff's activities.
The basis for the audit event was the order of LLP "S" dated 01/25/2022.
On 03/18/2022, an audit report was prepared on the identified violations, according to which: the plaintiff (Customer) illegally applied a method from a single source by directly concluding a contract for procurement under items No. 49533745 and No. 49533306 of the Annual Public Procurement Plan of 2022; the plaintiff (Customer) did not meet the deadline for posting a public procurement report from a single source by directly concluding a contract that was created and approved on 03/16/2022.
On 04/06/2022, the plaintiff filed an objection of disagreement with the audit report to the Internal State Audit Appeal Department of the Ministry of Finance of the Republic of Kazakhstan (hereinafter referred to as the Department of Corrections).
On 05/18/2022, following the results of the review of the objection by the Department of Appeal, the objection was refused.
On 05/19/2022, the Department issued the appealed order.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision remains unchanged.
Cassation: judicial acts were annulled, a new decision was made on the case, the application was refused.
Conclusions: The local courts, satisfying the claim, motivated by the fact that the impugned order is not justified, it does not specify the norms of the Law to be enforced, thereby the defendant did not ensure compliance with the provisions of Article 129 of the CPC. The order does not specify the specific measures that the plaintiff must take, the defendant limited himself to indicating the need to take measures to eliminate the identified violations.The judicial board disagreed with these conclusions of the local courts.
By virtue of article 4 of the Law on Public Procurement, the implementation of public procurement is based on the principles of: optimal and efficient spending of money used for public procurement; providing potential suppliers with equal opportunities to participate in the public procurement procedure, except in cases provided for by this Law; fair competition among potential suppliers, preventing collusion between procurement participants; openness and transparency of the public procurement process, including respecting the legitimate rights of suppliers to trade secrets (verifying the results of public procurement); providing support to domestic manufacturers of goods, as well as domestic suppliers of goods and services to the extent that this does not contradict international agreements ratified by the Republic of Kazakhstan; responsibility of participants in public procurement; prevention of corruption; acquisition of innovative and high-tech goods, works, and services; compliance with the intellectual property rights contained in the purchased goods.
According to subparagraph 3) of paragraph 3 of Article 39 of the Law, public procurement from a single source through the direct conclusion of a public procurement contract is carried out in cases of acquisition of goods and services that are objects of intellectual property from a person who has exclusive rights in respect of the purchased goods and services.
In accordance with article 41 of the Law, public procurement of goods, works, and services using a single source method by directly concluding a public procurement agreement on the grounds provided for in paragraph 3 of Article 39 of this Law is carried out in exceptional cases when it is impossible to purchase such goods, works, and services using other methods specified in subitems 1), 2), 3), 5) and 6) of paragraph 1 of Article 13 of this Law (tender; auction; request for price proposals; commodity exchange; electronic store).
It has been established that "Cloud service services" with similar characteristics in the market of the Republic of Kazakhstan can be provided by other potential suppliers, including "S" LLP. In other regions of the Republic of Kazakhstan, according to the results of public procurement through a competition for similar services, LLP "F" and LLP "C" were recognized as winners.That is, IT LLP is not the only supplier with exclusive rights in relation to the services it purchases.
The arguments of the Department of Education about the absence of other providers of acquired services in the region were found to be incorrect.Legislation in the field of public procurement does not prohibit the acquisition of services only at the customer's location.The plaintiff's arguments about the validity of conducting public procurement from a single source do not comply with the above-mentioned circumstances and legal norms.
The procedure for conducting and completing an audit is regulated by the Law of the Republic of Kazakhstan "On State Audit and Financial Control" (hereinafter referred to as the Audit Law) and the Rules for Conducting Internal State Audit and Financial Control by the authorized body for Internal State Audit and Financial Control, approved by Order No. 392 of the Minister of Finance of the Republic of Kazakhstan dated March 19, 2018 (hereinafter referred to as the Law on Audit). - Rules).The courts did not take into account that the Department conducted not a desk check, but an audit event (audit), according to the results of which an audit report was prepared. After considering the objection of the Education Department, an audit report was drawn up, then an Order was issued.
According to paragraph 107 of the Rules, the person responsible for conducting the audit event forms an audit opinion on the results of the internal state audit in accordance with annex 13 to these Rules.
In accordance with paragraph 109 of the Rules, the audit report reports, systematizes and summarizes the identified facts of violations, deficiencies indicated in the audit report or the audit report on financial statements, confirmed by quality control documents, as well as the results of expert opinions (if any).
All violations identified by the Department are reflected in the audit report and the audit report, with reference to documents related to the contested public procurement. At the same time, the Department also gave a legal assessment of the conformity of the method of conducting public procurement.
The order is drawn up in accordance with the appendix to the Rules, and its form and content comply with the requirements of the law.
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