On the recognition of illegal actions of administrative authorities to reject a tender application due to non-compliance with qualification requirements

No. 6001-23-00-6ap/810 dated 07/25/2023

Plaintiff: LLP "SP"

Defendants: State Institution "Department of Public Utilities, Passenger Transport and highways of the city", State Institution "Department of Public Procurement of the region"

Interested parties: LLP "B", RSE na PHB "National Accreditation Center" of the Committee for Technical Regulation and Metrology of the Ministry of Trade and Integration of the Republic of Kazakhstan.

The subject of the dispute: on the recognition of illegal actions of administrative authorities to reject a tender application due to non-compliance with qualification requirements, on the cancellation of the protocols of the results of tenders No. 7640926-OK1 and No. 7640305-OK1, on the invalidation of the public procurement contract.

Review of the cassation appeal of the interested party of LLP "V".

PLOT: On May 18 and 19, 2022, the Department announced tenders: No.7640305-OK1 "Technical supervision services for the construction of the highway along the street"; No. 7640926-OK1 "Technical supervision services for the reconstruction of the highway along Kosmonavtov St.", the customers of which were the Department.

Applications for participation in the competition were submitted by several potential suppliers, including the Partnership. Protocols No. 7640305-OK1 and No. 7640926-OK1 dated July 11, 2022 summed up the results of the tenders, according to the results of which LLP "B" was identified as the winner in lots No.52560920-OK1, No. 52434077-OK1, and LLP "K" as the potential supplier who took the second place.

The plaintiff's application was rejected. On July 18, 2022, the Partnership applied to the Russian State Institution "Department of Internal State Audit of the Region of the Internal State Audit Committee of the Ministry of Finance of the Republic of Kazakhstan" (hereinafter referred to as the Department) with a request to review the results of the competitions. Having not received a response on the merits of the complaint, on August 8, 2022, the Partnership filed a complaint with the State Institution "Committee of Internal State Audit of the Ministry of Finance of the Republic of Kazakhstan", which also did not resolve the complaint on the merits.

Judicial acts:

1st instance: the claim is partially satisfied.

It was decided to declare illegal and cancel the protocol on the results No. 7640926-OK1 dated July 11, 2022 for lot No. 52434077-OK

1 "Copyright/technical supervision services"; to declare illegal and cancel the protocol on the results No.7640305-OK1 dated July 11, 2022 for lot No. 52560920 –OK1 "Copyright/Technical supervision services";

to invalidate the public procurement contract for services No. 120 dated October 11, 2022, concluded between the Department and Broad Mark Construction LLP.

The rest of the claim was denied.

Appeal: the court's decision was changed, the refusal to satisfy the claim was canceled, and the claim was returned based on subparagraph 11) of the second part of Article 138 of the CPC.

Cassation: the decision of the appeal is overturned, the case is sent for a new hearing to the court of appeal with a different composition of judges.

Conclusions: The courts, partially satisfying the claim, declaring illegal and canceling the protocols on the results, concluded that according to appendix 11 to the tender documentation "Information on qualifications and criteria affecting the competitive price offer for the procurement of services", the subcontractors of the Partnership attached accreditation certificates corresponding to the purchased services, according to the requirements of the tender documentation.

The courts found that the bid of the potential supplier of the plaintiff fully complied with the qualification requirements. In support of their conclusions, the courts referred to a letter from the National Accreditation Center, agreeing with the latter's position on the incorrectness of the tender documentation, which, in the opinion of the courts, restricts the rights of the plaintiff.

At the same time, the arguments of the interested party of B LLP about the non-compliance of the plaintiff's subcontractors with the qualification requirements set out in Annex 7 to the tender documentation regarding the possession of material resources have not been investigated by the courts, they have not been given a proper legal assessment. The conclusions of the courts on the full compliance of the plaintiff's application with the requirements of the tender documentation are based on assumptions.

 

 

 

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