On challenging the results of the competition, forcing to review the results of the competition, invalidation of the public procurement contract

No.6001-23-00-6ap/432, (2) dated 08/3/2023

Plaintiff: K LLP

Respondent: State Institution "Department of Public Procurement of the Akimat of the region".

Interested parties: Department of Architecture, Urban Planning and Construction of the Akimat of the district, KES LLP.

The subject of the dispute: contesting the results of the competition, forcing the review of the results of the competition, invalidating the public procurement contract.

Review of cassation complaints from interested parties of the Architecture Department and KES LLP.

PLOT: According to the results of the public procurement competition for the "Construction of rural water supply" (outcome protocol No. 6750245-OK1 dated March 28, 2022), KES LLP was recognized as the winner, and the plaintiff was the potential supplier who took second place.

Based on the results of consideration of the plaintiff's complaint, the Russian State Institution "Department of Internal State Audit of the Region" (hereinafter referred to as the Department) recognized the legitimate admission of potential suppliers to participate in the tender.

Based on the results of consideration of the objection by the State Institution "Committee of Internal State Audit of the Ministry of Finance of the Republic of Kazakhstan" (hereinafter referred to as the Committee), a conclusion was issued on partial satisfaction of the objection, according to which the fact of providing false information has not been established.

Having disagreed with the results of the results of the competition, the Partnership appealed them in court. The claim is motivated by the fact that the work experience of KES LLP, obtained through reorganization from other legal entities, was unreasonably taken into account by the competition commission.

Judicial acts:

1st instance: the claim is satisfied.

Appeal: the court's decision remains unchanged.

Cassation: judicial acts are upheld.

Conclusions: The courts, satisfying the plaintiff's claims, motivated the conclusions by the fact that work experience cannot be attributed to intangible assets, they are, in fact, inalienable non-property benefits of a legal entity that cannot be transferred to another legal entity, even in the case of reorganization.

It was established that the potential supplier of KES LLP, while participating in public procurement, claimed work experience transferred to him as a result of the reorganization. A conditional 7.6% discount based on his own work experience was not enough to recognize him as a winner.

So, on May 14, 2020, KNS LLP was reorganized by separating a new legal entity from it, Company U LLP, to which, according to the dividing balance sheet, part of the rights and obligations, property, and other assets were transferred from the same date, including the experience of construction and installation work performed from 2010 to 2019. there are 18 facilities, despite the fact that the date of initial registration of Company U LLP is November 27, 2020. On November 27, 2020, the minutes of the general meeting of participants of KES LLP decided to reorganize the LLP by joining Company U LLP with the transfer of all assets, liabilities, working capital, rights and obligations of the latter according to the transfer act.

At the same time, the stated work experience of KES LLP, transferred to him by Campania U LLP during the reorganization, could not be taken into account, since it was not his own experience, which he received directly as a general contractor or subcontractor.

In addition, "Company U" LLP transferred to "KES" LLP the work experience that did not belong to him, which would have been listed for him in the electronic depository with the status "Confirmed". Moreover, the supporting documents on the availability of Company U LLP permits for construction and installation work have not been submitted.

 

 

 

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