CHALLENGING THE RESULTS OF THE INTERNAL STATE AUDIT ON GOVERNMENT PROCUREMENT

In accordance with paragraph 3 of Article 47 of the Law, in case of appeal against 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 after the expiration of the period established by paragraph 2 of this Article, the complaint is considered in the framework of electronic state audit in accordance with the legislation of the Republic of Kazakhstan on State Audit and Financial Control.

According to paragraph 5 of Article 18 of the GAiFK Law, an unscheduled audit of the authorized body for internal state audit is conducted.:

1) on the instructions of the President of the Republic of Kazakhstan, the Head of the Presidential Administration of the Republic of Kazakhstan, the Government of the Republic of Kazakhstan, the Prime Minister of the Republic of Kazakhstan and his deputies;

4) at the request of individuals and legal entities only on the issues set out in them.

Paragraph 9 of Regulation No. 598 provides that if violations are detected after the conclusion of public procurement contracts, an electronic state audit is conducted in accordance with paragraph 6 of Article 17 of the Law or a state audit in accordance with subparagraph 3) paragraph 5 of Article 18 of the Law.

The expiration of the time limit for filing a complaint by way of desk control by a potential supplier in case of disagreement with the results of the competition does not deprive him of the opportunity to file a complaint with the internal state audit bodies.

Public procurement control and complaint review are conducted as part of an electronic state audit.

For example, the Department held an open competition for the maintenance of the highway "Bolshoy Chagan-Peremetnoye 0-42 km". BM LLP was recognized as the winner of the competition.

An internal state audit was conducted in connection with an appeal from a potential supplier of VP LLP about disagreement with the results of the DVGA competition.

Based on the results of the audit, an audit report and an audit report were prepared, and an order was issued to the Management.

             The Department challenged these acts in court, arguing that this database is necessary for road maintenance. The court's decision satisfied the claim.

Subparagraph 1.2 of paragraph 1 of the audit report, the auditor's report, and the instruction to eliminate the violation were declared illegal.

By the decision of the SCAD, the court's decision was changed and canceled in terms of satisfying the Management's claim for recognizing the audit report and the audit report as illegal. In the specified part, the claim has been returned.

The rest of the court's decision remains unchanged. The judicial acts were upheld in the cassation instance.

According to the conclusions of the local courts: in the report and conclusion of the DVGA, it indicated that the Management in the tender documentation unlawfully established an unregulated requirement for potential suppliers to have a material resource "base in the area of the serviced section of the highway", guided by subparagraph 1 of paragraph 3 of Article 21 of the Law on Civil Protection.

According to subparagraph 2 of Article 4 of the Law, the implementation of public procurement is based, inter alia, on the principle of providing potential suppliers with equal opportunities to participate in the public procurement procedure, except in cases provided for by this Law.

By virtue of article 9 of the Law, potential suppliers are required to have sufficient material, labor and financial resources to fulfill their obligations under the GZ agreement.

It was established that according to this criterion, the potential supplier of VP LLP was approved as having the base necessary for the maintenance of the highway.

According to the results of the voting of the members of the competition commission, this potential supplier was rejected on another basis - lack of material resources - a set of equipment for preparing and filling seams-1 unit.

The courts rejected the arguments of the Department that the organizer had improperly non-administrative requirements in the tender documentation. The Authorized Body has not proved the guilt of the organizer of the tender and the violations of the law committed by him during the tender to potential suppliers, and therefore the courts have declared the order issued on the basis of these documents illegal.

The Department was supposed to conduct desk control and had no legal grounds for conducting an electronic state audit.

In accordance with Article 31 of the GAiFK Law, if violations are detected based on the results of desk control, the authorized body for internal state audit issues and sends to the objects of state audit a notification on the elimination of violations identified by the results of desk control, with a description of the violations in the form prescribed by the rules of desk control, no later than five working days. from the day the violations were detected.

In the case of self-elimination of violations identified by the results of desk control, within ten working days from the day following the date of delivery to the person being checked of the notification of elimination of violations identified by the results of desk control, the official is not subject to administrative liability.

The customer announced a competition using the auction method "a training cabinet for network administration within the framework of the Zhas Maman project."

The protocol on the results of the competition dated February 27, 2021 rejected the tender application of the potential supplier PKZ LLP, as the latter did not specify the exact model, did not submit authorization letters from the developer of the Antivirus operating system, interactive learning software.

According to the complaint of the potential supplier PKZ LLP dated March 2, 2021, the Department conducted an audit, as a result of which the complaint was satisfied.

In violation of paragraph 1 of Article 31 of the GAiFK Law, the Department has not issued a notification on the elimination of violations, whereas this document must be submitted no later than five working days from the date of the violations.

The complaint was filed by the potential supplier within 5 working days in accordance with the requirements of paragraphs 2.3 and 5 of Article 47 of the Law on Civil Protection.

If the complaint is filed with the authorized body after five working days, it is considered within the framework of an electronic state audit in accordance with the legislation of the Republic of Kazakhstan on state audit and financial control (paragraph 2 of Article 47 of the Law).

In this case, the protocol on the results of public procurement was posted on February 27, 2021, while the partnership filed a complaint with the authorized body on March 2, 2021, that is, within 5 working days.

As a result, an order dated June 8, 2021, was submitted to the customer on the elimination of violations and consideration of the issue of bringing to justice those who committed them.

The defendant's actions on the appointment of an audit and the act on the appointment of an audit were declared illegal by local courts.

It should be noted that the requirement to recognize the actions of the defendant on the appointment of an audit by the plaintiff was stated incorrectly, since the administrative act itself was challenged.

A participant in an administrative procedure has the right to appeal an administrative act, an administrative action (inaction) not related to the adoption of an administrative act. According to subparagraph 5) of part 1 of Article 4 of the CPC, an administrative action (inaction) is an action (inaction). an administrative body, an official in public relations that is not an administrative act.

Pre-trial dispute settlement procedure

In accordance with paragraphs 6, 7 of Article 47 of the Law on Civil Protection, based on the results of consideration of a complaint received within the time limits established by paragraph 2 of this Article, the authorized body shall make a decision in accordance with subparagraph 6) of Article 16 of this Law or to dismiss the complaint.

In case of disagreement with the decision of the authorized body adopted in accordance with paragraph 6 of this article, the potential supplier has the right to appeal it to the appeal commission in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan on state audit and financial control.

It follows from the meaning of this provision of the Law that if a potential supplier does not agree with the decision of the authorized body, when appealing actions (inaction), decisions of the customer, the organizer of public procurement within five working days from the date of posting the protocol on the results of public procurement by means of a tender (auction), appealing his decision to a higher authority is the right of a potential supplier.

However, paragraph 9 of the Law regulates that the pre-trial dispute settlement procedure provided for in this article is mandatory.

According to paragraph 2 of Article 58-6 of the Law "On State Audit and Financial Control", the appellate settlement of disputes in cases stipulated by this Law is mandatory.

By virtue of paragraph 33 of the Rules for conducting desk Control, in case of disagreement with the decision of the department of the authorized body and (or) with the notification of the territorial subdivision sent in accordance with subitems 2 and 3) of part two of paragraph 26 of these Rules, the potential supplier who submitted an application for participation in the relevant tender (auction) and (or) the object of the state submits a complaint to the appeals Commission through publicly available information systems, including through a web portal in accordance with Appendix 7 to these Rules, or applies to the court.

JURISDICTION OF ADMINISTRATIVE CASES

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 declared invalid on this basis, then such claims are subject to joint consideration in 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.

NPS No. 4 also provides that in this case, regarding the claim for invalidation of the contract, 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.

PROCEDURAL TERMS IN COURTS

In accordance with parts 1 and 2 of Article 9 of the CPC, everyone has the right, in accordance with the procedure established by this Code, to apply to an administrative body, an official or a court for protection of violated or disputed rights, freedoms or legitimate interests.

The waiver of the right to appeal to an administrative body, an official, or a court is invalid. in general, the Participants of the GZ have the right to apply to the court within the time limits set by the APPC.

Potential suppliers are challenging the decisions of authorized bodies, decisions, actions (inaction) of the customer, the organizers of the competition in the field of public procurement in accordance with Article 132 of the CPC.

At the same time, Article 136 of the APPC establishes deadlines for filing a lawsuit in court.

Claims for challenging or coercion are filed with the court within one month from the date of delivery of the decision of the body considering the complaint based on the results of the complaint review.

If the law does not provide for a pre-trial procedure or there is no body reviewing the complaint, the claim is filed within one month from the date of delivery of the administrative act or from the moment of notification in accordance with the procedure established by this Code and the legislation of the Republic of Kazakhstan.

The deadline for filing a claim that has been missed for a valid reason may be restored by the court according to the rules of the CPC.

The reasons for missing the deadline for filing a claim in court and their significance for the proper resolution of an administrative case are clarified by the court in a preliminary hearing.

Missing the deadline for filing a lawsuit without a valid reason, as well as the inability to restore the missed deadline for filing a lawsuit, are grounds for returning the claim.

The court finds out the reasons for the missed deadline in the preliminary hearing and resolves the issue of restoring the missed deadline.

In case of refusal to restore the missed deadline by the court, the claim is returned.

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 (CC)

- 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 for 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 for conducting 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);

- A special public procurement procedure 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.

ABBREVIATIONS

administrative act – administrative act

GZ - public procurement;

RNU – register of unscrupulous participants in public procurement;

SMAS – specialized interdistrict Administrative Court;

SCAD – 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;

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