NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of April 21, 2022 No. 4

About application by courts of the legislation on public procurements

Due to the questions which arose in court practice by consideration of disputes on public procurements for the purpose of the correct and uniform application of the legislation the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations:

1. According to article 3 of the Law of the Republic of Kazakhstan of December 4, 2015 No. 434-V "About public procurements" (further - the Law) the legislation of the Republic of Kazakhstan on public procurements is based on the Constitution of the Republic of Kazakhstan (further - the Constitution) and consists of regulations of the Civil code of the Republic of Kazakhstan (further - group of companies), the Law and other regulatory legal acts of the Republic of Kazakhstan.

By hearing of cases of this category courts need to be guided by the Law, and on the questions which are not settled by the Law - regulations of group of companies, Code of civil procedure of the Republic of Kazakhstan (further - GPK), the Administrative procedural Procedure Code of the Republic of Kazakhstan (further - APPK), the Law of the Republic of Kazakhstan of November 12, 2015 No. 392-V "About the state audit and financial control" (further - the Law on the state audit) and other regulations. Courts should differentiate the disputes arising in selection process of the supplier and the conclusion of the contract with it on public procurements which procedure for consideration is regulated by APPK regulations, and the disputes following from the agreement on public procurements which are considered according to the procedure of civil legal proceedings according to GPK regulations.

If the international treaty ratified by the Republic of Kazakhstan establishes other rules, than those which are provided by the Law then are applied rules of the international treaty. According to Item 3 of article 4 of the Constitution the international agreements ratified by the Republic have priority before its laws.

2. According to Article 29 GPK the claims following from agreements on public procurements are shown in the location of the defendant.

The claims following from agreements on public procurements in which the place of execution is specified at the choice of the claimant can be shown also in the place of agreement performance according to Article part six 30 GPK.

According to Item 1 of Article 24, item 4 of article 38 of the Law submission of the application for participation in public procurements (the price offer) is form of expression of consent to implementation of delivery of goods, performance of works, rendering services according to the requirements and conditions established by the tender documentation. In this regard claims for recognition of the potential supplier by the unfair participant of the public procurements which are carried out by the specified methods at the choice of the claimant can be also shown in the place of agreement performance.

Contest of results of public procurements, decisions of authorized body on entering of the potential supplier into the register of unfair participants of public procurements, and also decisions, conclusions, instructions, notifications of authorized body following the results of check of carrying out public procurements, is performed according to the procedure, provided by part three of article 106 APPK, at the place of residence (stay) of the claimant.

If the claimant along with the requirement about recognition of results of tender by illegal requires to recognize on this basis the signed agreement on public procurements invalid, then such claims are subject to joint consideration in specialized interdistrict administrative court taking into account requirements of part three of Article 84, of Article part three 155, of part two of article 156 APPK.

In this case, regarding the claim for recognition of the agreement invalid, do not need observance by the claimant of the procedure for pre-judicial dispute settlement provided by the agreement.

Claims of the potential supplier on actions (failure to act), decisions of the customer, the organizer of public procurements, the single organizer of public procurements, the commissions, the expert, the single operator in the field of public procurements, and also on actions (failure to act), decisions of authorized body and bodies of the state audit and financial control are subject to consideration by specialized interdistrict administrative court.

Claims of organizers of public procurements, the customers connected using subitems 1) and 3) of part one of item 4 of article 12 of the Law, and also claims following from execution of agreements on public procurements are subject to consideration by specialized interdistrict economic court.

Claims for contest of the decision of authorized body for recognition of the potential supplier by the unfair participant of public procurements recognized as that according to the subitem 2) of part one of item 4 of article 12 of the Law are subject to consideration by specialized interdistrict administrative court.

3. The bodies which determined the fact of provision by the potential supplier of unreliable information on the qualification requirements and (or) documents influencing the competitive price offer, the customer in case, stipulated in Item 4 articles 12 of the Law shall make in the terms established by the Law in court the claim for recognition of the potential supplier (supplier) by the unfair participant of public procurements.

These terms are preclusive which expiration is the basis for refusal in allowance of the application about recognition of the potential supplier by the unfair participant of public procurements.

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