NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 14, 2012 No. 5

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:

1. According to Item 1 of article 2 of the Law of the Republic of Kazakhstan "About public procurements" of July 21, 2007 (further - the Law) the legislation 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 special law, and on the questions which are not settled by the special law - regulations of group of companies, Code of civil procedure of the Republic of Kazakhstan (further - GPK) 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 Chapter regulations 27 GPK, from the disputes following from the agreement on public procurements which are considered according to the procedure of claim production.

By Item 2 of article 2 of the Law it is determined that 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. Courts need to mean that according to Item 3 of article 4 of the Constitution the international agreements ratified by the republic have priority before its laws and are applied directly, except cases when follows from the international treaty that its application requires the publication of the law.

2. According to Article of 31 GPK suits for disputes on public procurements are commenced in the location of the defendant. Owing to part of 1 Article 30 GPK of case on disputes on public procurements in which parties are the citizens performing business activity without formation of legal entity legal entities consider specialized interdistrict economic courts.

Courts should mean that the claims following from agreements on public procurements in which the place of execution is specified at the choice of the claimant are shown also in the place of agreement performance according to part 6 of Article 32 GPK.

According to Item 1 of Article 21, Item 2 of Article 31, Item 1 of article 35-3 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 public procurements. 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.

3. According to the subitem 2) of Item 3 of article 10 of the Law of person, the provisions by the potential supplier of unreliable information which determined the fact on qualification requirements, and also according to item 4 of article 11 of the Law the customer shall make in the terms specified by the Law the claim in court 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.

The requirement of the subitem 2) of Item 3 of article 10 of the Law does not extend to Calculating committee on control of execution of the republican budget and audit committees of areas, cities of republican value, the capital, except as specified, when they act as customers (organizers) of public procurements (Item 3 of article 10 of the Law).

4. According to the subitem 3) of Item 1 of article 11 of the Law the authorized body performs forming and maintaining the unified republican register of unfair participants of public procurements. In this regard according to the subitem 1) Article part one 153 GPK should refuse to courts adoption of the statement for inclusion in the register of unfair participants of public procurements as not subject to consideration and permission according to the procedure of civil legal proceedings or by its consideration along with other requirements to take out determination about suit abatement in this part based on the subitem 1) of Article 247 GPK.

5. The bases of forming of the register of unfair participants of public procurements are stipulated in Item 4 articles 11 of the Law, this list is exhaustive and is not subject to extensive interpretation.

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