The inclusion of potential suppliers in the register of unscrupulous procurement participants and the application of penalties to them
In accordance with Presidential Decrees No. 285 dated March 15, 2020, No. 306 dated April 14, 2020, and No. 310 dated April 29, 2020, in connection with the declaration by the World Health Organization of the new coronavirus COVID-19 as a pandemic, in order to protect the life and health of citizens, a state of emergency has been imposed throughout the Republic of Kazakhstan since March 16. 2020, which has been extended until May 11, 2020. Pursuant to Presidential Decree No. 287 dated March 16, 2020 "On further measures to stabilize the economy", Government Decree No. 127 dated March 20, 2020 approved a Special procedure for public procurement, which was valid until December 31, 2020. A special procedure defines the procedure for public procurement during crisis situations. In accordance with paragraph 9-1 of the Special Procedure, in cases where potential suppliers identified by the winners evade the conclusion of a public procurement contract or the supplier fails to fulfill or improperly fulfills contractual obligations arising from the imposition of a state of emergency, the customer does not take measures to include such potential suppliers or suppliers in the register of unscrupulous procurement participants and apply penalties to them.
The inclusion of potential suppliers in the register of unscrupulous procurement participants and the application of penalties to them
Resolution No. 9 of the plenary session of the Supreme Court of the Republic of Kazakhstan dated May 6, 2020 provided Clarification No. 1 on certain issues of judicial practice in connection with the introduction of a state of emergency. In particular, the plenary session clarified that Government Decree No. 127 dated March 20, 2020 "On Defining a Special Procedure for Public Procurement" prohibits the customer from making demands: 1) recognition of the supplier as an unscrupulous participant in public procurement; 2) collection of penalties. If such a claim is filed by the customer, the judge refuses to accept the statement of claim as not subject to consideration in civil proceedings. The courts, referring to the above-mentioned provisions of the regulations, while refusing to accept the statement of claim, legitimately pointed out that the non-fulfillment of obligations arose due to circumstances beyond the supplier's control, since the deadline for fulfilling the supplier's obligations fell during the emergency period (from March 16 to May 11, 2020). At the same time, there have been isolated cases in judicial practice when the court of appeal unreasonably overturned the court's ruling on the refusal to accept the claim and sent it to the same court for consideration of the case on the merits. So, on July 23, 2020, by the ruling of the judge of the Zhambyl Regional Court, the ruling of the Council of Economic and Social Services of the Zhambyl region dated May 18, 2020 on the refusal to accept the claim of the RSE "Center for Forensic Examinations of the Ministry of Justice of the Republic of Kazakhstan" to Platinum Group KZ LLP on recognition as an unfair participant in public procurement was canceled. In support of the cancellation, the judge indicated that the agreement between the parties was concluded on April 13, 2020, with a deadline of May 4, 2020, and the state of emergency expired on May 11, 2020. However, the defendant's obligations under the contract have not been fulfilled, and evidence of non-fulfillment of obligations due to the state of emergency has not been provided. This reasoning of the court clearly does not comply with the requirements of the above-mentioned Government decree and the explanation of the plenary session of the Supreme Court. Upon a new hearing of the case, the proceedings were terminated by the ruling of the court of first instance dated November 2, 2020. The court legitimately pointed out that the claim was not subject to consideration in civil proceedings, since the non-fulfillment of obligations arose due to circumstances beyond the supplier's control, since the deadline for fulfilling the supplier's obligations fell during the emergency period.
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