So, on November 15, 2021, the Head of State signed the Law "On Amendments and Additions to Some Legislative Acts of the Republic of Kazakhstan on Public Procurement, procurement of subsoil users and Natural Monopolies, communications, Road Transport, Defense and Financing of Science". This law, with the exception of certain provisions, entered into force on January 1, 2022.
The following amendments to the Law "On Public Procurement" are the main ones.
Firstly, four cases are excluded from 52 procurement grounds from one source:
- acquisition of material assets of the state material reserve, issued in the order of refreshment;
- purchase of services related to the state educational order for individuals (if an individual has independently chosen an educational organization);
- acquisition of trust management services for property from a person defined by the legislation of the Republic of Kazakhstan;
- purchase of goods up to 100 MCI, as well as works and services
On December 4, 2015, the head of state signed the law of the Republic of Kazakhstan "on Public Procurement" (hereinafter referred to as the law), which entered into force on January 1, 2016.
For the implementation of this law, the order of the Minister of Finance of December 11, 2015 № 648 approved the rules for the implementation of Public Procurement, according to which the amount of security for the performance of the contract for the current financial year is calculated based on the annual amount of the contract provided for in the corresponding financial year in case of conclusion of a contract with a period of Security for the performance of the contract in the next financial year is made by the supplier within ten working days from the beginning of the corresponding financial year.
"In turn, it should be noted that in accordance with paragraph 1 of Article 37 of the law of the Republic of Kazakhstan" "on normative legal acts"", the normative legal Act does not apply to relations that arose before its entry into force."
Thus, the requirements of the new legislation on public procurement do not apply to contractual obligations concluded before January 1, 2016. At the same time, in accordance with paragraph 2 of Article 45 of the law, it is allowed to make changes to the concluded public procurement contract, provided that the quality and other conditions that served as the basis for choosing a supplier do not change.
In this regard, the customer has the right to make appropriate changes to the concluded public procurement contract in terms of setting deadlines for making security for the performance of the contract.
In accordance with paragraph 2 of Article 43 of the law of the Republic of Kazakhstan "on Public Procurement" (hereinafter referred to as the law), the customer submits to the winner a draft public procurement contract certified by an electronic digital signature through the web portal of Public Procurement:
1) within five working days from the date of expiration of the deadline for appealing the protocol on the results of public procurement by means of a tender (auction) ;
2) within five working days from the date of determining the winner of public procurement by requesting price offers.
In cases where the procedure for selecting a supplier, including the procedure for appealing the results of Public Procurement conducted within the framework of the preliminary annual public procurement plan, is completed before the approval of the relevant budget (development plan), the draft public procurement contract is sent to the winner within five working days from the date of approval of the relevant budget (development plan).
The winner of public procurement by means of a tender, auction, request for price offers must certify the draft public procurement contract with an electronic digital signature within three working days from the date of receipt of the notification attached to the draft public procurement contract on the web portal of Public Procurement (paragraph 3 of Article 43 of the law).
In accordance with paragraph 4 of Article 43 of the law, the requirements for concluding a public procurement contract through the web portal of public procurement are set out in paragraph 3 of Article 39 of this law. 4), 9), 17), 18), 20), 21), 23), 26), 31), 32), 35), 40), 41)
At the same time, the term of conclusion of public procurement contracts provided for in the first part of Paragraph 4 of Article 43 of the law may not exceed thirty calendar days from the date of sending a draft public procurement contract to a potential supplier.
The legislation on public procurement does not provide for suspension of execution of the public procurement contract and unilateral refusal of the contract on the part of the supplier.
At the same time, in accordance with paragraph 1 of Article 3 of the law, the legislation of the Republic of Kazakhstan on public procurement is based on the Constitution of the Republic of Kazakhstan and consists of the norms of the Civil Code of the Republic of Kazakhstan, this law and other normative legal acts of the Republic of Kazakhstan.
An agreement on the procedure for amending and terminating a contract in accordance with article 402 of the civil code is concluded in the same form in which the contract is concluded, unless otherwise arising from laws, contracts or ordinary rights in the field of business activity.
Only after receiving a refusal of the other party from an offer to change or terminate the agreement, or within the time limits specified in the offer or established by law or the agreement, and in the absence of such a period, the party may file a claim to change or terminate the agreement with the court after no response has been received within thirty days.
Modification and termination of the contract on the basis of the above is carried out in accordance with the procedure established by the legislation on public procurement and the Civil Code.