Recognition of the decision of the competition commission regarding the rejection of an application for participation in a public procurement tender as illegal
Thus, by the decision of the specialized interdistrict economic court of the Karaganda region dated October 10, 2016, the claim of LLP was partially satisfied against the State Institution "Management of Construction in the Karaganda Region" (hereinafter referred to as the Construction Department), the State Institution "Management of State Assets and Procurement of the Karaganda Region" (hereinafter referred to as the Management of State Assets), LLP (hereinafter referred to as the Supplier) and resolved: – to declare illegal the decision of the State Assets Management Competition commission dated July 8, 2016 regarding the rejection of the LLP's application for participation in the public procurement tender for works "Completion of the construction of a boarding school for visually impaired children with 250 places in the city of Karaganda with the reinforcement of defective and restoration of destroyed structures" on the grounds of non-compliance of the supplier with special qualification requirements in terms of having sufficient material and labor resources to fulfill the contract, namely: on the grounds of failure to provide information about the presence of a milling ditch on the tractor; – oblige the tender commission of the State Assets Management to consider the bids of all potential suppliers from the stage of summing up the results of the tender No. 490353-1 "Completion of the construction of a boarding school for visually impaired children for 250 places in the city of Karaganda with the reinforcement of defective and restoration of destroyed structures";
– to declare illegal the contract No. 145 dated August 17, 2016 between the Construction Department and the Supplier on public procurement of works "Completion of the construction of a boarding school for visually impaired children with 250 places in the city of Karaganda with the reinforcement of defective and restoration of destroyed structures"; – to dismiss the LLP's claim to the Construction Department for forcing them to review the protocol of the results of the competition "Completion of the construction of a boarding school for visually impaired children with 250 places in the city of Karaganda with the reinforcement of defective and restoration of destroyed structures" with admission to the LLP competition. The decision of the Judicial Board for Civil Cases of the Karaganda Regional Court of December 14, 2016, which remained unchanged, partially satisfied the claims of LLP against the State Institution "Management of Construction in the Karaganda region", the State Institution "Management of State Assets and Procurement of the Karaganda region", the Supplier on the recognition of the decision of the tender commission regarding the rejection of the tender application of LLP, on the recognition of illegal actions regarding the conclusion of an agreement between the State Institution "Management of Construction in the Karaganda region" and the Supplier on public procurement of works dated August 17, 2016, on the recognition of an illegal agreement concluded between the State Institution "Management of Construction in the Karaganda region" and the Supplier on public procurement of works dated August 17, 2016, on the compulsion to review the protocol of the results of the competition No. 490353-1 "Completion of the construction of a boarding school for visually impaired children with 250 places in the city of Karaganda with the reinforcement of defective and restoration of destroyed structures" with admission to the competition LLP. By the resolution of the Judicial Board for Civil Cases of the Karaganda Regional Court dated December 14, 2016, the decision of the court of first instance was changed. The judicial act was canceled regarding the recognition of the illegal contract on public procurement of works "Completion of the construction of an international school for visually impaired children for 250 places in the city of Karaganda with the reinforcement of defective and restoration of destroyed structures" dated August 17, 2016 No. 145, concluded between the Construction Department and the Supplier. In this part, a new decision was made to dismiss the claim. The rest of the court's decision remains unchanged. The petitions of the LLP and the Supplier were transferred to the cassation instance by the judge's decision for consideration. The court of first instance, partially satisfying the LLP's claims, proceeded from the fact that the tender commission, in violation of the requirements of subparagraph 3) of paragraph 2 of Article 28 of the Law, did not provide information and documents confirming the LLP's non-compliance with the qualification requirements and the requirements of the tender documentation.
Due to the recognition of the decision of the tender commission as illegal, as well as gross violations of the requirements of article 40 of the Law committed during public procurement using a single-source method, the Contract between the Construction Department and the Supplier was also declared illegal. By changing the court's decision and refusing to satisfy the requirement to declare the Contract illegal, the appeals board proceeded from the absence of this method of protecting the violated right in the legislation. The LLP did not declare any claims for invalidation of the Contract. In addition, the appeals board stated in support of the decision that the Contract was executed for 65% of the financing plan for 2016. Regarding the requirements for declaring the Contract illegal. The board finds the reasons for the decision taken by the appeals board to dismiss the claim for declaring the Contract illegal, citing the lack of such a method of protecting rights, since the law provides for the recognition of the transaction as invalid, unfounded. In its statement, the LLP, as the basis for canceling the Contract, pointed out that it did not comply with the requirements of the law, namely, Article 158 of the Civil Code. Incorrect use of legal terminology by the LLP in the requesting part of the application is not an absolute ground for rejecting the claim. At the same time, the essentially correct decision of the appeals board, by virtue of part 3 of Article 427 of the CPC, cannot be overturned for formal reasons alone. If the court has made the correct decision, but these violations have been committed, the decision provides the reasons, norms of substantive and procedural law, according to which the decision must be left unchanged. One of the principles of public procurement, defined in article 4 of the Law, is the principle of optimal and efficient spending of money used for public procurement. The construction of a boarding school for visually impaired children with 250 places in the city of Karaganda is a socially significant facility. At the time of consideration of the civil case in the appellate instance, the Supplier had mastered 65% of the financing plan for 2016. The Construction Department has no claim against the Supplier for the proper fulfillment of obligations under the Contract. Completion of the construction and commissioning of the Facility is scheduled for July 1, 2017. In this regard, the board concluded that the Supplier's proper performance of its obligations under the Contract, taking into account the specifics of the public procurement contract, coupled with the established circumstances of the case, is an independent basis for refusing to satisfy claims for invalidation of the Contract. In this regard, the board agreed with the decision of the appellate instance to dismiss the claim for declaring the Contract illegal and upheld the judicial act of the appeals board.
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