Recognition of the protocol on the results as illegal and invalidation of the public procurement contract
No. 6001-22-00-6ap/2483 dated 05/18/2023
Plaintiff: LLP "B"
Respondent: State Institution "Public Procurement Department"
The subject of the dispute: on the recognition of the protocol on the results of June 24, 2022 as illegal, and the invalidation of the public procurement agreement No. 26 dated June 27, 2022
Review of the defendant's cassation complaint
PLOT:
The Department conducted public procurement No. 6482061-1 "Construction of the House of Culture" through a closed tender for the lot "Construction of non-residential buildings/structures","Construction of the house of culture".
According to the protocol on the results of the competition dated 12/28/2021, LLP "Zh" was identified as the winner of the competition.
The competition commission allowed and awarded conditional discounts based on work experience to the following potential suppliers: LLP "Zh" -5%, LLP "T" - 5%, LLP "P" - 5%, Partnership - 0.5%.
The plaintiff, disagreeing with the results of the competition regarding the assignment of a conditional 0.5% discount on work experience, filed a complaint with the Russian State Institution "Department of Internal State Audit" (hereinafter referred to as the Department).
The competition commission, when calculating the conditional discount of the plaintiff, did not take into account the work experience obtained as a result of the reorganization by joining the plaintiff to LLP "A".
The Department conducted a desk check, as a result of which the complaint was denied.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision is upheld.
Cassation: judicial acts are cancelled, the claim is denied.
Conclusions:
The local courts, satisfying the claim, proceeded from the fact that the norms of the law on public procurement do not provide for the rejection of the work experience of a potential supplier obtained as a result of the organization of legal entities, the competition commission had no reason to underestimate the work experience obtained through the reorganization (merger, accession) of the plaintiff as a potential supplier.
According to paragraphs 246 and 247 of the Rules for Public Procurement, approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated December 11, 2015 No. 648 (hereinafter - Rules) (as amended by January 14, 2022, paragraphs one and two of paragraph 155) if a potential supplier has experience as a general contractor (designer), the tender commission assigns a conditional discount of one percent (1%) for each year the potential supplier has experience in the market of purchased works, including the number of similar (similar) types of works that are the subject of the competition. If a potential supplier has experience working as a subcontractor (sub-designer), the competition commission assigns a conditional discount of 0.5%. For each year that he has experience working in the market of paid work, including for similar (similar) types of work that are the subject of a competition.
At the same time, according to paragraph 253 of Rules No. 648, if the subject of the competition is the construction of new facilities, as well as the expansion of technical equipment, modernization, reconstruction, restoration and capital repairs of existing facilities, documents confirming work experience are electronic copies of acceptance certificates of completed works and acceptance of facilities in accordance with the forms approved by the authorized body in the field of architecture, urban planning and construction activities in accordance with Article 20 of the Law "On Architectural, urban planning and construction activities in the Republic of Kazakhstan".It follows from the meaning of these norms that the assignment of a conditional discount by the competition commission is carried out if the potential supplier has work experience, based on the work actually performed, which must be confirmed by acts of completed work and acceptance of facilities for operation in accordance with the forms approved by law.
The conditional discount on work experience to the Partnership was not legitimately offset by the competition commission, the Partnership gained work experience as a result of the reorganization, that is, the separation from PC "A" - LLP "A", which subsequently joined the plaintiff. At the time of the competition, the same total work experience was used in the electronic depository by both the direct owner of PC "A" and the Partnership.Having discovered the duplication of the same work experience for two companies, the defendant filed an application to block information registered with the Partnership.
As of the date of the hearing in the court of cassation, information on all 19 disputed objects was verified in the electronic depository for PC "A", and work experience in two of them: the construction of a school for 600 places in the city, the construction of a secondary school for 1,200 students in the microdistrict, was simultaneously verified for the plaintiff.
In this regard, the actions of the competition commission to reject the plaintiff's work experience on 19 objects were recognized by the judicial board as legitimate and unfounded.
At the time of consideration of the case in the court of cassation, the issue of transferring work experience from one supplier to another in the organization was legally regulated by making changes.
According to paragraph 245-2 of the Rules, the work experience of a reorganized legal entity is not entered into the electronic depository, and it is also not taken into account when calculating criteria affecting the competitive pricing, in the presence of one of the following cases:
if the claimed work experience of a potential supplier is obtained as a result of reorganization through separation or separation from another legal entity;
if the claimed work experience of a potential supplier is obtained as a result of several successive types of reorganization (separation, separation, merger, affiliation, transformation);
if the declared work experience of a potential supplier is obtained as a result of the reorganization of legal entities (merger, affiliation, transformation), where one of the reorganized legal entities has the restrictions provided for in subparagraphs 3), 4), 5) and 6) of paragraph 1 of Article 6 of the Law;
if the claimed work experience of a potential supplier is obtained as a result of the reorganization of legal entities (merger, affiliation, transformation), where one of the reorganized legal entities is deprived of a license (permit) to carry out activities relevant to the subject of public procurement.
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