On invalidation of the contract on public procurement of works in the field of construction
No.6001-23-00-6ap/1042, 6001-23-00-6ap/1042 (2), 6001-23-00-6ap/1042 (3) dated 08/29/2023
Plaintiff: SGC LLP
Defendants: State Institution "Management of Assets and Public Procurement", State Institution "Management of Fuel and Energy Complex and Utilities", State Institution "Department of Internal State Audit of the Committee of Internal State Audit of the Ministry of Finance of the Republic of Kazakhstan", State Institution "Committee of Internal State Audit of the Ministry of Finance of the Republic of Kazakhstan".
Interested party: LLP "AS".
The subject of the dispute:
on the recognition of illegal and cancellation of the notification on the elimination of violations identified by the results of the Department's desk control dated April 8, 2022;
on the recognition of illegal and cancellation of the protocol on the results of public procurement No. 6830724 dated April 15, 2022 within the framework of the competition 6721688-1 "Contract works "Gasification of the city of the second stage of construction. High-pressure gas pipeline (launch complex 7);
on invalidation of the contract on public procurement of works in the field of construction No. 2022/38 dated April 22, 2022, concluded between the Management of the Fuel and Energy Complex and AS LLP.
Review of the cassation complaints of the Asset Management, the Management of the Fuel and Energy Complex and AS LLP. PLOT: On January 28, 2022, the Management announced tender No. 6721688-1 "Contract works "Gasification of the city of the second stage of construction. High-pressure gas pipeline". (7 launch complex)".
The customer of the competition is the Management of the Fuel and Energy Complex,
The organizer is Asset Management. On February 27, 2022, the Partnership submitted an application for participation in the competition. According to the protocol on the results No. 6566395 dated March 15, 2022, the Partnership was recognized as the winner of the competition, and AS LLP was identified as the potential supplier and the runner-up.
The results of the competition were appealed by AS LLP to the Department. Based on the results of desk control, the Department issued a notification, complaints were partially satisfied, and a conditional discount based on work experience was recalculated for potential suppliers. Based on the Department's notification, the results of the competition have been reviewed by the organizer.
According to the protocol, "AS" LLP was determined the winner, and "SGC" LLP was the potential supplier who took the second place. Disagreeing with the protocol, the Partnership appealed to the Committee against the Department's actions, pointing out that the potential supplier of AS LLP provided false information on the documents submitted in the tender application, affecting the overestimation of the conditional discount on work experience.
The Committee rejected the complaint of the Partnership. Having disagreed with this decision, the Partnership appealed to the court with the present claim.
Judicial acts:
1st instance: the claim is partially satisfied.
It was decided: to declare illegal and cancel the protocol; to invalidate and terminate the contract; to oblige the Asset Management to review the results of public procurement for tender No. 6721688-1 "Contract works "Gasification of the city of the second stage of construction. High-pressure gas pipeline". (7 launch complex)". The rest of the claim was denied. 2022 Appeal: the court's decision has been changed.
The court's decision regarding the satisfaction of the claim for the termination of the public procurement contract dated April 22, concluded between the Management of the Fuel and Energy Complex and Aliya-Service LLP, was canceled with the adoption of a new decision to dismiss the claim in this part.
The rest of the court's decision remains unchanged.
Cassation: the appeal ruling is upheld.
Conclusions: The Court of First Instance, partially satisfying the claim, pointed out that the authorized state bodies had not fully investigated the plaintiff's arguments and had not given a proper assessment to the arguments about providing AS LLP with false information on work experience.
The Court of appeal, agreeing with the court's conclusions on the illegality of the results of the tender and the concluded contract, changed the decision regarding the satisfaction of the claim for termination of the contract, rejecting the claim in this part, legitimately pointing out the confusion of legal concepts and the sufficiency of the application of the consequences of the invalidity of the contract.
The courts have established and confirmed by the evidence available in the case file that when providing information on work experience, LLP "AS" allowed not only the fragmentation of work experience under one public procurement contract No. 19/69 dated September 11, 2019 RP "Gasification 1-construction phase 3,4,5,6 launch complexes" into 4 independent information, but also there is a provision of false information.
From the responses of the State Institution "Treasury Department for the City", the State Institution "Department of Architecture, Urban Planning and Land Relations of the city", it follows that the work under the specified contract has not been completed in full, information on the registration of the certificate of commissioning is 6 launch complexes (RP "Gasification 1-construction stage 3,4,5,6 launch complexes") is not available, the specified contract has the status of partially executed on the public procurement portal.
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