The court incorrectly applied the norms of substantive law, recognizing the results of the competition as illegal
No. 6001-23-00-6ap/1144 dated 06/27/2023
Plaintiff: K.A.
The defendants: KGP at the PHB "Multidisciplinary Regional Hospital" of the municipal state institution "Department of Public Health Administration", KSU "Department of Public Procurement"
The subject of the dispute: the recognition of the results of the competition as illegal
Review of the plaintiff's cassation appeal
PLOT:
Individual entrepreneur K.A. challenged the results of public procurement for the tender No. 8510196-OK1 for lot No. 54515927-OK1 "Services for the organization of patient nutrition" dated 16.01.2023.
Judicial acts:
1st instance: the claim is returned.
Appeal: the definition remains unchanged.
Cassation: judicial acts have been annulled, the case has been sent to the court of the first instance.
Conclusions:
The return of the claim is motivated by the fact that the plaintiff's application for participation in the competition was rejected on 12/02/2022. Accordingly, the plaintiff had no right to file a claim challenging the results of the competition.
The judicial board recognized such conclusions of the courts as erroneous.
According to the subparagraph of Article 2 of the Law of the Republic of Kazakhstan, a potential supplier is an individual engaged in entrepreneurial activity, a legal entity (with the exception of state institutions, unless otherwise specified by the laws of the Republic of Kazakhstan), a temporary association of legal entities (consortium) applying for the conclusion of a public procurement contract.
By virtue of paragraph 2 of the NPA dated 04/21/2022 No. 4 "On the Application of the Law on Public Procurement to Courts", in accordance with paragraph 1 of Article 24, paragraph 4 of Article 38 of the Law, the submission of an application for participation in public procurement (price offer) is a form of consent to supply goods, perform work, and provide services in accordance with the requirements and conditions established by the tender documentation.
By submitting an application for participation in public procurement, IP K.A., applying for a public procurement contract, is recognized as a potential supplier.
In accordance with paragraph 1 of Article 47 of the Law, a potential supplier has the right to appeal against actions (inaction), decisions of the customer, the organizer of public procurement, a single organizer of public procurement, commissions, experts, a single operator in the field of public procurement, if actions (inaction), decisions violate the rights and legitimate interests of a potential supplier.
Accordingly, IP K.A. has the right to appeal against the decisions of the organizer of public procurement, if such decisions violate his rights and legitimate interests.
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