Rejection of a potential supplier's Application and cancellation of the protocol decision of the appeals commission
No. 6001-23-00-6ap/744 dated 19.10.2023
Plaintiff: SK-F LLP (hereinafter referred to as the Partnership)
Respondents: State Institution "Ministry of Finance of the Republic of Kazakhstan" (hereinafter referred to as the Ministry), State Institution "Department of Internal State Audit" (hereinafter referred to as the Department)
The subject of the dispute: the recognition of the illegal actions of the Ministry in rejecting objections and the cancellation of the protocol decision of the appeals commission of October 21, 2022, the recognition of the illegal order to eliminate the identified violations of December 1, 2022 and its cancellation
Review of the Ministry's cassation appeal
PLOT: On May 30, 2022, the Partnership announced a tender for the purchase of a medical device "Rapid test for the qualitative determination of hidden blood in feces" using a tender method.
Applications have been submitted by potential suppliers: A M&C LLP, RSO LLP, EPK LLP. According to the results of the competition, according to the protocol of results No. 409860-T1 dated June 20, 2022, RSO LLP was recognized as the winner of lot No. 4498627-T1. The application of a potential supplier of EPK LLP was rejected due to the lack of an approved marginal price for a trade name of a medical device registered in the Republic of Kazakhstan. Disagreeing with the results of the competition, on June 22, 2022, EPK LLP filed a complaint with the Department. The Department conducted an audit event. On August 31, 2022, audit report No. 143 was prepared, according to which the potential supplier of EPK LLP was unreasonably rejected by the tender commission from participating in the purchase. On September 14, 2022, the Partnership filed an objection to the audit report with the Appeals Commission, whose protocol decision of October 21, 2022 denied the objection. On December 1, 2022, the Department issued an order to the Partnership to eliminate the identified violations and to consider the responsibility of those who committed them. The Partnership appealed to the court with the above requirements, arguing that the Appeal Commission for Consideration of Objections under the Ministry (hereinafter referred to as the Appeal Commission) unlawfully rejected the plaintiff's objection to the audit report on the results of the Department's audit.
Judicial acts:
1st instance: the claim is satisfied.
It was decided: to recognize as illegal the actions of the Ministry in rejecting the objections of the Partnership and to cancel the protocol decision of the appeal commission dated October 21, 2022; to recognize as illegal and cancel the Department's order to eliminate the identified violations dated December 1, 2022. By a private ruling dated December 14, 2022, the Minister of Finance was informed of violations established by the court when considering the Partnership's administrative claim against the Ministry, the Department for challenging administrative acts, in order to take measures and prevent these facts from continuing.
Appeal: the decision and the private definition are left unchanged.
Cassation: judicial acts are upheld.
Conclusions: Local courts, satisfying the claim, guided by the requirements of paragraph 7 of Article 245 of the Code of the Republic of Kazakhstan "On the Health of the People and the Healthcare System" (as amended at the time of the announcement of the competition), subparagraph 15) of paragraph 11 of the Rules for organizing and conducting the purchase of medicines, medical devices and specialized medical products within the guaranteed amount of free medical assistance, recognized the actions of the plaintiff to reject the application of EPK LLP as legitimate, since the latter has not submitted the approved marginal price for the claimed medical device.
Recognizing the contested order as illegal, the courts concluded that it was premature and formal, since the order did not contain a list of specific violations identified during the audit, and the courts also found violations of the procedure for considering the plaintiff's objections by the Ministry's Appeals Commission. The Judicial Board agrees with the conclusions of the courts, since the application of EPK LLP did not comply with the requirements of the legislation in force at the time of the competition and was lawfully rejected. The arguments of the author of the cassation appeal are identical in their content, meaning and purpose to the arguments given in the explanations, which were given a proper legal assessment by the court of first instance and the court of appeal.
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