Protection in Administrative cases and offenses
Liability under part 1 of Article 159 of the Administrative Code occurs for the commission of anticompetitive agreements by market entities prohibited by the PC, if these actions do not contain signs of a criminal offense and circumstances to be proven.: 1) whether there are anti-competitive agreements prohibited by the PC; 2) whether the actions of the offender do not contain signs of a criminally punishable act. At the time of registration of the Contract, the legislation did not impose an obligation on the subsurface user to purchase services through a tender, these actions are determined by the contractor independently in accordance with the terms of the Contract. By a resolution of the Uralsk City CAC dated December 28, 2016, LLP "Zh" was found guilty of committing an offense under part 1 of Article 159 of the Administrative Code, with the imposition of an administrative fine in the amount of KZT 3,130,935. By the resolution of the West Kazakhstan Regional Court dated January 26, 2017, the court's decision remained unchanged.
Protection in Administrative cases and offenses
By the decision of the Supreme Court of August 24, 2017, judicial acts were canceled, and proceedings on an administrative offense were terminated due to the absence of an administrative offense. According to the protocol on administrative offense No. 42 of July 27, 2016, LLP "Zh" is charged with concluding an anticompetitive agreement between market entities prohibited by the PC, expressed in the failure of LLP "C" to submit documents, tender proposals and their subsequent submission on purpose, determining the list of companies allowed to participate in the tender at the discretion of the customer., exclusion of LLP "A" from this list. Zh LLP operates under Contract No. 81 for exploration, additional exploration, production and separation of hydrocarbon raw materials (production division) at the Chinarevskoye oil and gas condensate field in the West Kazakhstan region, concluded on October 31, 1997. By virtue of paragraph 5 of the Preamble of the Contract, the subsurface user agrees to comply with the current legislation of the Republic of Kazakhstan during the execution of the Contract when operating in the territory of the Republic of Kazakhstan. Guarantees of the stability of the Contract are provided by the rules that the provisions of the Contract remain unchanged throughout the entire term of the Contract. At the time of the Contract's entry into force, the Decree of the President of the Republic of Kazakhstan "On Subsoil and Subsoil Use" dated January 27, 1996 No. 2828 was in force, which did not provide for a special procedure for the purchase of services by a subsurface user.
In accordance with paragraph 3 of Article 276 of the Tax Code, the Republic of Kazakhstan guarantees the stability of the terms of contracts concluded between investors and government agencies of the Republic of Kazakhstan, except in cases where amendments to contracts are made by agreement of the parties. At the time of registration of the Contract, the legislation did not impose an obligation on the subsurface user to purchase services through a tender, these actions are determined by the contractor independently in accordance with the terms of the Contract. The provisions of clause 19.3 of the Contract prescribe the possibility of holding a tender in the case of a contract with contractors, and not when concluding a service agreement. The same provision of the Contract grants the subsurface user the right to choose whether to engage contractors on a competitive basis or without one. In accordance with paragraphs 3.6, 3.6.1. "Procurement procedures for goods, works and services in LLP "Zh", approved on May 15, 2014, as a rule, the company must conclude a contract for the supply of goods, works and services based on tenders, subject to compliance with the provisions of these procedures. When conducting tenders, an approach based on the principles of equality and free competition is applied to all participants. The internal procedures tender method (closed tender) means that tender proposals can only be submitted by those companies to which the contractor has sent the tender documentation.
Consequently, the conclusions about the illegality of conducting closed purchases, which provide for the admission to the tender of only participants determined by the customer, and the restriction of LLP "A" in participating in the tender are untenable, since the decision on access to participation in the tender of certain participants is provided to the subsoil user LLP "Zh". The procurement procedure for goods, works and services in LLP "Zh" provides for the obligation to submit tender documentation within a certain time frame. The deadline for submitting applications is November 13, 2015. The specified requirements of LLP "S" have been met, and the method of delivery of the tender documentation, on purpose or by mail, does not matter legally. In such circumstances, the courts had no legal grounds to establish the fact that LLP "Zh" had committed an administrative offense provided for in part 1 of Article 159 of the Administrative Code.
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