Response to a claim for recognition as an unfair participant in public procurement
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To the Specialized Interdistrict Economic Court of Kyzylorda
Judge B.Yelshibekov
Kyzylorda, Aiteke bi str., 29
+7 (7242) 55- 98-50
110202@sud.kz
from the Defendant: IP Zh. in the face of
J.S.A.
IIN ...........
73/1 Aksai St., Burlinsky district, West Kazakhstan region.
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan str., office 304, Almaty,
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 978 50 85; +7 700 978 50 85.
Review of the claim
on recognition as an unfair participant in public procurement
You have a civil case No. 4360-22-00-2/2288 pending in your proceedings regarding the claim of the Kyzylorda branch of the RSE at the Kazvodkhoz Water Resources Committee of the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan (hereinafter referred to as the Plaintiff) against individual entrepreneur Zh.Sh.A. (Hereinafter referred to as the Defendant) for recognition as an unfair participant in public procurement.
According to which the Plaintiff justifies his claims that a contract No.... was concluded between the Plaintiff and the Defendant.. dated 09/29/2022 on public procurement of goods (hereinafter referred to as the Agreement).
The subject of the contract is the Product - ZTSP1 "Engine" complete with canopy mechanical injection pump, short-term power (176 kW, 300 hp. 2300 rpm) inline 4-stroke water-cooled turbocharger 6-cylinder intercooler, direct injection for tracked special equipment brand DX-300LCA (GOST R ISO 3046-5-2004) in the amount of 1 set. The Defendant, in the role of Supplier, undertakes to deliver the Goods in accordance with the terms, requirements and prices specified in the annexes to this Agreement, which are an integral part of it, and the Customer undertakes to accept the Goods and pay for them under the terms of this Agreement, provided that the Supplier properly fulfills its obligations under the Agreement.
According to paragraph 2.1 of the agreement, where the total amount of the agreement is determined by Appendix No. 1 to the Agreement and amounts to 7,200,000.00 (seven million two hundred thousand tenge zero tiyn) tenge and includes all expenses related to the provision of Services, excluding VAT.
The plaintiff stated in the lawsuit that the defendant had delivered the goods on time. However, during the inspection and control of the delivered goods in accordance with the requirements of section 4 of the Contract, the Plaintiff's representative found that the goods did not meet the requirements of the technical specification, as well as damage to the Goods, which was the subject of a defective report. According to the requirement of section 6 of clause 6.2 of this Agreement, In case of detection of non-delivery of Goods, according to the list of purchased goods and the technical specification specified in the annexes to this Agreement, or detection of any hidden factory defects in the delivered Goods at the time of opening the package, or if the quality of the Goods does not fully comply with the technical conditions of manufacture, the Customer in 20 The (twenty-day) period is the complaint statement, and the Supplier replaces the product with a new one within 14 calendar days at his own expense.
We disagree with the Plaintiff's claim on the following grounds:
The defendant, for its part, fulfilled all obligations under the contract on public procurement of goods. According to Appendix 2 to the tender documentation, the Product fully complies with the technical specifications of the purchased goods. In addition, the defendant sent additional spare parts for the Product.
In addition, the technical specification of the purchased goods does not specify that the product must be new.
This product is of high quality and meets the requirements of international standards.
The product is also free from any rights and claims of third parties based on industrial and other intellectual property.
No defects were found on the Product during shipment.
272 of the Civil Code of the Republic of Kazakhstan, the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with business practices or other commonly imposed requirements.
166 of the Civil Procedure Code of the Republic of Kazakhstan, where the defendant submits to the court a response to the claim with attached documents that refute the arguments regarding the claim, as well as copies of the response and the documents attached to it, we are sending this letter and we want you to understand that we did not try to avoid obligations under the contract.
By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.
In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings.
359 of the Civil Code of the Republic of Kazakhstan, where a person who has not fulfilled or improperly fulfilled an obligation in carrying out business activities is liable for property liability unless he proves that proper fulfillment was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions (natural disasters, military actions, state of emergency etc.)
361 of the Civil Code of the Republic of Kazakhstan, which stipulates that if a bilateral agreement makes execution impossible for one party due to a circumstance for which neither party is responsible, then neither party, since the legislative act or the contract does not provide otherwise, has the right to demand the execution of the contract. In this case, each of the parties has the right to demand the return of everything that it has performed without receiving a corresponding counter-performance.
Based on the above and in accordance with Articles 359, 361 of the Civil Code of the Republic of Kazakhstan,
I ask the Court:
The claim of the Kyzylorda branch of the Kazvodkhoz RSE of the Committee on Water Resources of the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan to the individual entrepreneur Zh.Sh.A. for recognition as an unscrupulous participant in public procurement must be denied.
With respect,
Representative by proxy
_____________/ Nurlanov N.N.
"____" ___________2022 the year
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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