Violation of the substantive law on Samruk-Kazyna procurement
No. 6001-22-00-6ap/2492 dated 05/25/2023
Plaintiff: "G" LLP
Defendant: Samruk-Kazyna JSC
Interested party: LLP "S"
The subject of the dispute: on the recognition of illegal actions for non-control over the implementation by certain entities of the quasi-governmental sector of the requirements of the law and the rules of procurement, the obligation to send to the organizer, Atyrau Oil Refinery LLP (hereinafter referred to as ANPZ LLP), a notification of the cancellation of the protocol of the results of the open tender dated 06/08/2022 and the obligation to return to its original position the open tender No. 708555 for the purchase of "Works on maintenance of green spaces in the sanitary protection zone of ANPZ LLP.
Review of the cassation appeal of the interested personfabula:
On 04/29/2022, ANPZ LLP announced an open tender for the purchase of "Maintenance and maintenance of green spaces in the sanitary protection zone of ANPZ LLP" in which G LLP participated.By the protocol of results dated 06/08/2022 (hereinafter referred to as the disputed protocol), LLP "S" was recognized as the winner.
On 06/10/2022, the plaintiff complained to JSC that there were signs of unreliability and falsification of documents in the submitted documents of LLP "S".
On 06/14/2022, the plaintiff's complaint was dismissed, with an explanation that all documents were provided by the potential supplier.
Disagreeing with this answer, on 26.06.2022, the plaintiff re-filed a complaint with the defendant against the actions of the organizer of ANPZ LLP.
By a letter dated 07.07.2022, the complaint was left without consideration.
On 27.06.2022, the purchase agreement No. 708555/2022/1 was signed between ANPZ LLP and C LLP.
Disagreeing with the results of the tender and the results of the complaint, the plaintiff appealed to the court.
Judicial acts:
1st instance: the claim is satisfied. The ruling returned the claim against ANPZ LLP for recognition as illegal and cancellation of the protocol of results dated 06/08/2022 to open tender No. 708555.
Appeal: the decision is upheld.
Cassation: judicial acts are cancelled, the claim is returned.
Conclusions:
The local courts, in satisfying the claim, argued that the defendant had not taken measures to establish the fact that the potential supplier had provided false information, had not requested the necessary documentation, and had not requested the original primary documents from the potential supplier, thereby failing to carry out proper control.
At the same time, the courts of the first and appellate instances, when resolving the dispute, essentially did not take into account the following circumstances.
In accordance with the second part of Article 102 of the CPC, the courts have jurisdiction over disputes arising from public law relations provided for in this Code in the order of administrative proceedings.
One of the obligatory signs of public law relations is the participation in them of a subject endowed with public authority over the other side of these relations.
According to sub-paragraphs 4) and 7) of the first part of Article 4 of the APPC, a sub-administrative act is a decision taken by an administrative body, an official in public law relations, implementing the rights and obligations of a certain person or an individually defined circle of persons established by the laws of the Republic of Kazakhstan.
An administrative body is a state body, a local government body, a state-owned legal entity, as well as other organizations that, in accordance with the laws of the Republic of Kazakhstan, are authorized to adopt an administrative act or perform an administrative action (inaction).
According to the first part of Article 3 of the CPC, this Code regulates relations related to the implementation of internal administrative procedures of state bodies, administrative procedures, as well as the procedure of administrative legal proceedings.
The Judicial Board considers that the plaintiff's claims in the amended version do not contain the subject of the dispute to be considered in the administrative proceedings.
In accordance with article 15 of the Law of the Republic of Kazakhstan "On Procurement of Individual Quasi-Public Sector Entities" (hereinafter referred to as the Law), control over compliance by individual quasi-public sector entities with the requirements of this Law and the procurement rules is carried out by the centralized Procurement Control service and the authorized procurement agency.
According to paragraphs 8,9 of Article 16 of the Law, based on the results of the review of the complaint received within the time limits set out in paragraphs 2 and 3 of this Article, the centralized procurement control service makes a decision to cancel and (or) revise or refuse to cancel and (or) revise the procurement results.
A decision to refuse to cancel and/or revise the procurement results, containing conclusions that there is no need to cancel and/or revise the procurement results with their reasoned justification, is sent to the applicant within three calendar days from the date of such decision.
In case of disagreement with the decision of the centralized procurement control service adopted in accordance with paragraph 8 of this article, the potential supplier has the right to appeal it to the court.Based on the above, a potential supplier who participated in the procurement and does not agree with the results of the tender has the right to appeal them in court in compliance with the above-mentioned pre-trial dispute resolution procedure.
In the case under consideration, the plaintiff filed a lawsuit challenging the results of the tender, having received a refusal from the defendant to satisfy the claim. The court of first instance, having made an erroneous interpretation of the law, recommended that the plaintiff change the subject of the claim to claims that are not amenable to consideration in administrative proceedings, since the procedure for appealing the results of the tender is regulated by Law and is not subject to interpretation.
The plaintiff does not agree with the results of the tender and has the right to appeal them in administrative proceedings, since ANPZ LLP, which is a quasi-public sector entity, procures in accordance with the Law and exercises administrative authority over the bidders. At the same time, the defendant's actions to exercise control over purchases are subject to evaluation as part of the review of the request to challenge the results of the tender and do not contain an independent subject of dispute.
According to subparagraph 11) of the second part of Article 138 of the CPC, the claim is returned as not subject to consideration in the order of administrative proceedings.
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