On the cancellation of notifications on the elimination of violations identified by the results of desk control

No. 6001-23-00-6ap/142 dated 07/27/2023

Plaintiff: AG LLP

Respondent: RSU "Department of Internal State Audit" Interested party: LLP "W"

The subject of the dispute: cancellation of notifications on the elimination of violations identified by the results of desk control

Review of cassation complaints of the defendant and the person concerned

PLOT:

AG LLP participated in public procurement through an open tender No.6782675-1 – "Cleaning of city streets and settlements from weeds and reeds for 2022 for lots No.51040890-OK1, No. 51040940-OK1, No. 51041026-OK1, No. 51041087-OK1, No. 51040980-OK1, No. 50996585-OK1, No.51040802-OK1. No. 51040839-OK1,

The organizer has set qualification requirements for the availability of material and labor resources for potential suppliers in Appendix 6 to the tender documentation No. 6782675-1. On April 1, 2022, the results of the competition were held, according to which AG LLP was determined the winner of the lots, and W LLP was the second winner.

According to the complaint of LLP "A", the Department conducted a desk control, as a result of which, on April 22, 2022, the disputed notices were sent to the organizer, the City Finance Department. On June 2, 2022, the Committee issued an opinion on the refusal to satisfy the objections of the organizer of public procurement to the notifications.

On June 6, 2022, the City Finance Department informed the Department about the execution of notifications by reviewing the results, sending the results protocol No. 7218549. On June 14, 2022, the Housing and communal services concluded an agreement with W LLP on public procurement of non-construction works. The basis for issuing notifications was the establishment of the facts of providing false information on the documents submitted in the tender application regarding the availability of labor resources.

In particular, the employee A.U., indicated in the tender application of AG LLP, is not his employee. In addition, lot No. 51050802-OK1 states the availability of material resources specified in Appendix 6 to the CD, namely dump trucks-2 units, however, there is no second side of the vehicle registration certificate in the supporting documents for the Kamaz-6520 dump truck (SRTS EW00002489-08/14/2019.028TN06).

Judicial acts:

1st instance: the claim is satisfied.

Notifications on the elimination of violations identified by the results of desk control have been canceled. №231010000-4 6-169840, №231010000-4-6-169841, №231010000-4-6-169842, №231010000-4-6 169843, №231010000-4-6-169845, №231010000-4-6-169846, №231010000-4-6 169848 dated April 22, 2022.

Appeal: the decision remains unchanged.

Cassation: judicial acts are cancelled, the claim is denied.

Conclusions: The courts pointed out that the defendant had failed to comply with the form of preparation of notifications and appendices, and that the fact of providing false information had not been established as listed in paragraph 2 of Article 11 of the Law of the Republic of Kazakhstan "On Public Procurement" (hereinafter referred to as the Law) as the basis for satisfying the plaintiff's claims to declare illegal the notices issued by the defendant.

These conclusions are unfounded, as they are based on a misinterpretation of the Law.

In accordance with paragraph 2 of Article 11 of the Law, the reliability of information provided by a potential supplier on qualification requirements and (or) documents affecting the competitive price offer may be established by an authorized body or bodies of state audit and financial control, including on the basis of information and documents provided by the customer, the organizer of public procurement, a single organizer public procurement, at any stage of public procurement.

It follows from the case file that the fact of providing false information on qualification requirements on the part of the plaintiff was established by the defendant, who is an internal state audit agency. In support of his arguments, the plaintiff presented to the court an employment contract No. 13-2018 dated March 29, 2018 and order No. 34-D "On employment", but no other reliable and acceptable evidence confirming the fact of an employment relationship with K., in particular, payslips on his salary, payments He did not submit a dismissal order to the UAPF for the period from 2018 to 2022.

Meanwhile, he's gone. In his written responses to the court, he categorically denied the fact that he was in an employment relationship with the plaintiff during the competition period. The fact of his employment relationship with the plaintiff is not recorded in the copy of the employment record provided by him.

In such circumstances, the testimony of witness T., who claimed otherwise, was not properly assessed by the courts. The court's erroneous conclusions about what happened. In fact, he was an employee of the plaintiff, which was the basis for the decision to satisfy the claim.

The notification form does not contradict the requirements of the Rules of Desk Control approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated November 30, 2015 No. 598.

At the same time, the judicial board concluded that the absence of the reverse side of the vehicle registration certificate for a Kamaz-6520 dump truck cannot be regarded as providing false information on the part of the plaintiff.

 

 

 

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