The deadline for the submission of applications by potential suppliers for participation in the competition and Industry deadlines in public procurement
In accordance with paragraph 2 of Article 5 of the Law "On Public Procurement", on the basis of the relevant budget (development plan) or individual financing plan, the customer develops and approves an annual public procurement plan in the manner and form defined by the rules for public procurement.
A financial year is a period of time beginning on January 1 and ending on December 31 of a calendar year during which the budget is executed (subparagraph 38) of Article 3 of the Budget Code of the Republic of Kazakhstan).
Based on the Budget Code, the Customer sets the term of the public procurement contract until December 31 of the current fiscal year.
The annual public procurement plan is approved (clarified) by the customer within ten working days from the date of approval (clarification) of the relevant budget (development plan) or individual financing plan.
Within five working days from the date of approval of the annual public procurement plan (preliminary annual public procurement plan), the customer is required to post it on the public procurement web portal.
The exception is information that constitutes state secrets in accordance with the legislation of the Republic of Kazakhstan on state secrets and (or) contains official information of limited distribution, determined by the Government of the Republic of Kazakhstan.
When conducting public procurement, the procurement organizer develops the tender documentation. A prerequisite for the approval of the tender documentation (CD) is a preliminary discussion of the CD project by potential suppliers.
No later than five working days from the date of the announcement of public procurement, potential suppliers may send comments to the draft CD to the customer, the organizer, and the single organizer, as well as requests for clarification of the provisions of the CD (Article 22 of the Law).
If there are comments, requests from the customer, the organizer makes a decision within five working days from the date of expiry of the preliminary assessment period.:
makes changes and/or additions to the CD project;
rejects comments and/or additions to the draft CD;
provides an explanation of the provisions of the CD. Posting on the web portal of the protocol of the preliminary discussion of the draft CD - no later than one working day from the date of the decision.
An application for participation in a tender is a form of expressing the consent of a potential supplier to the requirements and conditions established by the tender documentation After the approval of the CD and the posting of a protocol of preliminary discussion, potential suppliers submit their applications for participation in the tender.
Applications are accepted on the next business day after the day of posting the minutes of the preliminary discussion.
The deadline for the final submission of applications by potential suppliers for participation in the tender is at least fifteen calendar days from the date of posting the minutes of the preliminary discussion of the draft CD and the text of the approved tender documentation.
The organizer is obliged to post the text of the announcement on the implementation of public procurement by means of a tender on the web portal no later than three working days from the date of approval of the draft CD.
When repeated tenders are carried out by means of a tender, the text of the announcement must be posted at least five working days before the final date of submission of applications for participation in the tender, provided that the tender documentation of the failed tender remains unchanged, with the exception of extending the term of execution of the contract on the tender in connection with repeated tenders. The protocol of preliminary admission to participate in the competition is drawn up based on the results of consideration of applications for compliance of potential suppliers with qualification requirements and requirements of the tender documentation.
The protocol is signed by the chairman and all members of the competition commission, as well as the secretary of the competition commission on the day of the decision on the preliminary examination of applications for participation in the competition.
The decision of the competition commission on the preliminary admission of potential suppliers to participate in the competition is made within ten working days from the date of opening applications for participation in the competition (paragraph 3 of Article 27 of the Law).
In case of identification of potential suppliers who do not meet the qualification requirements and the requirements of the tender documentation, the tender commission grants such potential suppliers the right to bring applications for participation in the tender in accordance with the qualification requirements and the requirements of the tender documentation within three working days from the date of posting the protocol of preliminary admission to participation in the tender on the public procurement web portal (paragraph 4 of Article 27 of the Law).
Based on the results of the repeated review of applications for participation in the tender, the tender commission shall, within five working days from the date of expiry of the deadline for the re-submission by potential suppliers of applications for participation in the tender, brought in accordance with the qualification requirements and the requirements of the tender documentation.:
1) identifies potential suppliers who meet the qualification requirements and the requirements of the tender documentation, and recognizes participants in the competition;
2) applies and calculates criteria affecting the competitive price offer.
Based on the results of the open tender, a protocol on the results of public procurement is automatically generated and posted on the public procurement web portal with simultaneous e-mail notification to all members of the tender committee and all potential suppliers who have submitted applications for participation in the tender.
The customer shall send to the winner a draft contract drawn up in accordance with the standard contract within five working days from the date of expiry of the deadline for appealing the protocol on the results of public procurement by means of a tender.
The supplier, within ten working days from the date of conclusion of the contract, pays the security for the performance of the contract, as well as the amount in accordance with article 26 of the Law (if any).
A potential supplier has the right to appeal against the actions (inaction), decisions of the customer, the organizer of public procurement, the single organizer of public procurement, commissions, experts, the single operator in the field of public procurement, if their actions (inaction), decisions violate the rights and legitimate interests of the potential supplier (paragraph 1 of Article 47 of the Law).
A complaint by a potential supplier must be submitted no later than five working days from the date of posting the protocol on the results of public procurement through a tender (auction).
Jurisdiction of administrative cases in the field of public procurement
According to the second part of Article 102 of the CPC, the courts have jurisdiction in administrative proceedings over disputes arising from public law relations provided for by this Code.
Paragraph 2 of the NPS No. 4 clarifies that challenging the results of the GZ, decisions of the authorized body on the registration of a potential supplier in the RNU, as well as decisions, conclusions, instructions, notifications of the authorized body based on the results of the audit of the GZ, is carried out in accordance with the procedure provided for in part three of Article 106 of the APPC, at the place of residence (location) of the plaintiff.
If the plaintiff, along with the claim for recognition of the results of the tender as illegal, requires that the concluded GZ agreement be invalidated on this basis, then such claims will be subject to joint consideration by the SMAS, taking into account the requirements of part three of Article 84, part three of Article 155, part two of Article 156 of the CPC.
The authors of the analysis draw attention to the fact that the above provision of the NPS has been repeatedly pointed out at operational meetings and seminars held for judges of administrative jurisdiction. However, there are cases of refunds of claims regarding the recognition of GZ agreements, whereas they are filed jointly with claims for appealing the results of the GZ.
NPVS No. 4 also provides that in this case, regarding the claim for invalidation of the agreement, the plaintiff is not required to comply with the pre-trial dispute settlement procedure provided for in the contract.
Claims of a potential supplier against actions (inaction), decisions of the customer, the organizer, the single organizer of the GZ, commissions, an expert, a single operator in the field of GZ, as well as actions (inaction), decisions of the authorized body and GAiFK bodies are subject to review by the SMAS.
Claims of the organizers of the GZ, customers related to the application of subitems 1) and 3) of the first part of paragraph 4 of Article 12 of the Law on GZ, as well as claims arising from the execution of contracts on GZ, are subject to consideration by the Council of Economic Cooperation.
Claims challenging the decision of the authorized body to recognize a potential supplier as an unscrupulous participant in the GZ, recognized as such in accordance with subparagraph 2) The first part of paragraph 4 of Article 12 of the GZ Law is subject to review by the SMAS.
Refunds of administrative claims in the field of public procurement
The main reason for the returns due to lack of jurisdiction was that the contested administrative act was issued in electronic form and therefore should be considered at the location (residence) of the plaintiff.
This rule was introduced in the APPC and at the initial stage of judicial practice influenced the increase in the number of refunds.
A large number of lawsuits were returned by the court of first instance of Astana city due to the fact that the central administrative authorities are located in the capital.
In accordance with the first and second parts of Article 3 of the CPC, it regulates relations related to the implementation of internal administrative procedures, as well as the procedure for administrative proceedings.
The participants in the relations regulated by the Code are state bodies, administrative bodies, officials, as well as individuals and legal entities.
The subject of the legal regulation of the APPC is the activity of administrative bodies related to the adoption, cancellation, modification, and execution of a legally authoritative decision aimed at establishing, changing, or canceling the rights and obligations of specific persons, and performing legally significant actions.
Based on the meaning of paragraph 1 of the NPA No. 5, the courts should distinguish between disputes arising in the process of selecting a supplier and concluding a contract with him on GZ, the procedure for consideration of which is regulated by the rules of the CPC, and disputes arising from the contract on GZ, which are considered in civil proceedings.
The courts have received claims arising from the GZ agreement, in particular, for recognition as illegitimate and cancellation:
a) actions of the customer to send a notice of termination of the contract;
b) the defendant's failure to take measures to terminate the contract and the obligation to terminate it;
c) notification of termination prior to the negotiation unilaterally;
d) actions to send such notification.
The return of such claims by the courts is justified by the fact that disputes are not based on administrative or other authority subordination or dependence of one party (supplier) to the other (customer) by virtue of the powers of administrative bodies established by regulatory legal acts.
In this case, the stated claims contain a dispute over the terms of the contract concluded between the customer and the supplier, which excludes public relations between them.
In such cases, the claims were lawfully returned under subparagraph 2) of part seven of Article 3 of the CPC, which states that cases whose procedure is provided for by the CPC are not subject to administrative proceedings.
The plaintiffs challenged the audit report and the audit opinion based on the results of the internal state audit, and the courts reasonably concluded that such claims had been returned.
It should be noted that for a short time there were questions about the jurisdiction of these disputes due to the repeated amendments to Article 19 of the GAiFK Law.
Thus, from July 1 to July 6, 2021, this article provided that the GAiFK bodies would know the results of the state audit conducted by other GAiFK bodies, with the exception of documents from the internal audit services, in accordance with paragraphs 2, 3, 4 and 5 of this Article, unless they were declared illegal by a court in accordance with the legislation of the Republic of Kazakhstan. about administrative proceedings.
Since July 6, 2021, this rule has been amended with the transfer of disputes to civil procedural jurisdiction, which, in the opinion of the authors of this analysis, is reasonable from the point of view of legal logic, since the auditor's report and audit report8, in the first case, contains the conclusions and recommendations of the auditors, in the second, the results of the audit.
However, these documents do not have the mandatory criteria of an administrative act.9 At the same time, the courts should pay attention to the fact that, according to subparagraph 1) of paragraph 2 of Article 5 of the GAiFK Law, one of the financial control response measures is to issue mandatory orders for all government agencies, organizations and officials to eliminate identified violations and to consider the responsibility of those who committed them.
In addition, paragraph 7 of Article 58-4 of the same Law presupposes the right to appeal against the decisions of the appeal commission of the authorized body in the field of GAiFK.
Challenging such orders and decisions of the appeals commission is carried out in administrative proceedings, as well as challenging the actions (inaction) of the GAiFK bodies and (or) their officials10 if they meet the criteria of an administrative act, action (inaction).
Abbreviations
Administrative act – administrative act;
GZ - public procurement;
RNU – register of unscrupulous participants in public procurement;
SMAS – specialized interdistrict Administrative Court;
SKAD – judicial board for administrative cases of the regional court;
SCAD of the Supreme Court of the Republic of Kazakhstan – Judicial Board for Administrative Cases of the Supreme Court of the Republic of Kazakhstan;
SMEC – specialized interdistrict Economic Court;
Ministry of Finance - Ministry of Finance of the Republic of Kazakhstan;
Treasury – Treasury Committee of the Ministry of Finance of the Republic of Kazakhstan;
KVGA – Internal State Audit Committee of the Ministry of Finance of the Republic of Kazakhstan;
DVGA – Department of Internal State Audit of the Internal State Audit Committee of the Ministry of Finance of the Republic of Kazakhstan;
GAiFK – State audit and Financial control;
CD – tender documentation;
PSD – design and estimate documentation;
SN RK – building regulations of the Republic of Kazakhstan.
Regulatory legal framework
The Constitution of the Republic of Kazakhstan; the Civil Code of the Republic of Kazakhstan (CC);
The Civil Procedure Code of the Republic of Kazakhstan (CPC)
Administrative Procedural Procedure Code of the Republic of Kazakhstan (APPK);
Budget Code of the Republic of Kazakhstan;
The Tax Code of the Republic of Kazakhstan;
The Law of the Republic of Kazakhstan "On Public Procurement" (the Law on Public Procurement);
The Law of the Republic of Kazakhstan "On State Audit and Financial Control" (the Law on GAiFK);
The Law of the Republic of Kazakhstan "On Legal Acts";
The Law of the Republic of Kazakhstan "On the National Welfare Fund";
The Law of the Republic of Kazakhstan "On procurement of certain entities of the quasi-public sector";
Rules of public procurement approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated December 11, 2015 No. 648 (Rules No. 648);
Rules for the formation and maintenance of registers in the field of public procurement, approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated December 28, 2015 No. 694 (Rules No. 694);
The rules of desk control approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated November 30, 2015 No. 598 (Rules No. 598);
Rules for conducting Internal State audit and Financial Control, approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated March 19, 2018 No. 392 (Rules No. 392);
Special procedure for public procurement, approved by Resolution of the Government of the Republic of Kazakhstan dated March 20, 2020 No. 127 (valid until December 31, 2020) Rules for public procurement using a special procedure, approved by Resolution of the Government of Kazakhstan dated December 31, 2015 No. 1200 (Rules No. 1200);
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 21, 2022 No. 4 "On the application of Legislation on Public Procurement by Courts" (NPWS No. 4);
The Fund's Procurement Management Standard, approved by the decision of the Board of Directors of the Fund No. 31/19 dated September 3, 2019;
other regulatory legal acts of the Republic of Kazakhstan.
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