Entrepreneurs suffered from the negligence of the staff of the Ministry

The essence of the problem is that in 2016 a contract was concluded between a private company and the Ministry of Defense of the Republic of Kazakhstan on catering for servicemen of one of the military units until 31^st of December 2016. In the second half of December of the same year, an additional catering agreement was concluded with this company for another two months - January and February already in 2017. The agreements were signed in writing on 29^th of December 2016.

As a result: the company fulfilled its obligations in full, but did not see its money. The Ministry of Defense stated that it will not pay for the services provided, since the additional contract has not been registered with the Treasury bodies and, therefore, has not entered into force.

As a result: the company fulfilled its obligations in full, but did not see its money. The Ministry of Defense stated that it will not pay for the services provided, since the additional contract has not been registered with the Treasury bodies and, therefore, has not entered into force.

Entrepreneur was at an impasse: formally everything is correct. However, the service provider does not even have the opportunity to register the contract on its own. After all, the customer, in this case the ministry, had to submit an additional contract for registration with the treasury bodies and in case of refusal to notify the entrepreneur.

Repeated appeals to the ministry with a request to resolve this issue did not find an answer. It is strange that in their "excerpts" the state agency recognizes the blame, saying that the perpetrators are punished, but they were not planning to sign acts and pay for services.

In further proceedings, it turned out that more than a dozen entrepreneurs, more precisely, there was information on 11 subjects of small and medium-sized businesses, who suffered damage for a total of about two hundred million tenge (KZT191,840,399), were injured by unscrupulous actions of the Defense Ministry of RK. Perhaps even more, but "soberly" assessing the situation, they simply did not seek help and did not state the problem.

The damage is calculated not only by the amount of unpaid services, it is also multiply reflected in the timely payment of wages to employees, payment of taxes, payment of loans, etc.

Businessmen appealed to the National Chamber of Entrepreneurs "Atameken", also sent a collective appeal to the Head of State and Prime Minister of the Republic of Kazakhstan.

"The facts of the provision of services are confirmed by acts of acceptance of services and reconciliation signed by entrepreneurs and commanders of military units (service receivers), but the ministry still refuses to pay the bills", - said the lawyer of the Astana Lawyer Association Mukhtar Kozhakhmetov.

It is also interesting that the food of servicemen is provided at the expense of budgetary funds and where did the ministry send two months of unpaid money? After all, soldiers are actually fed for free.

Numerous appeals to the leadership of the Ministries of Defense and Finance did not allow the settlement of the dispute peacefully. Appeals to the judicial authorities likewise did not find support and were left without satisfaction.

"This situation negatively affects the reputation of the Defense Ministry, but the ministry itself apparently does not think about it", - the lawyer said.

Mukhtar Kozhakhmetov added that there is a way out of the situation, however, provided that the Ministry of Defense reacts to the complaints of entrepreneurs. The problem that has arisen because of the negligence of the state official can’t be resolved by itself, even if the guilty person has been punished and is no longer working in the state agency.

"As a way out - conciliation procedures that allow on a legal basis, subject to the principle of fairness, to resolve this issue. However, for some reason, the defendants do not want to go into this, believing that the entrepreneurs will suffer material losses, than the ministry will take a lawful decision in its favor. The Ministry of Defense of the Republic of Kazakhstan needs to take responsibility and make the only true decision - to settle the dispute within the framework of mediation", - said the lawyer of the affected entrepreneurs.

Almas Kemelbekov, expert of the Legal Protection of Entrepreneurs Department, in his turn, stressed that in the situation, the absence of a clear regulation of the issues of public procurement in the Ministry of Defense played a role.

"A well-known fact: any contract has two sides: the buyer-seller and the customer-executor. In this case, the ministry practically has all contracts for the provision of services and they have a reference to departmental acts, or rather to the Regulations for interaction between the structural units of the Ministry of Defense and the General Staff of the Armed Forces of the Republic of Kazakhstan and the RSU of the Ministry of Defense of the Republic of Kazakhstan in organizing and conducting state purchases of goods, works and services. From here the contracting party is the customer-the main department of public procurement (RSU "Military unit 20015"), representing the interests of the Ministry of Defense in the contract, which means that in this case all structural units of the ministry must act through it without having independent rights and obligations.

However, the same rules provide for several more parties: the organizer of public procurement, the customer, the content body and the receiver, each of which has its own algorithm of actions in the execution of contracts on public procurement", - the expert explains.

The customer is the authorized state institution of the ministry, which carries out the conclusion of the contract, control of execution and payment for services. In this case it is the RSU "Military unit of 20015". The receiver is a structural unit that directly accepts goods, works and services under public procurement contracts. At the same time, it is not a party to the treaty, it does not participate in signing it, but the contract prescribes their rights and duties, the spectrum of which is almost more than that of the customer, represented by the RSU "Military Unit 20015".

The content agency - the unit that provides the application for the service - ensures the fulfillment of the state function.

"In our case - the catering of servicemen. It is also not a party to the treaty, in fact it implements a large number of rights and obligations, but it has nothing to do with either ordering or receiving the service", - Almas Kemelbekov said.

The expert also asked himself about the customer himself - the RSU "Military unit of 20015". What is this unit?

"As it turned out, this is the main department, with the rights of the military unit in the Armed Forces of the Republic of Kazakhstan. It is structurally not part of the central apparatus of the Ministry of Defense, and, therefore, has no right to carry out state functions assigned to the central apparatus of the ministry. Nevertheless, in accordance with the order of the Minister of Defense, the state function was delegated to the "troops", eroding the responsibility between the structural units. The result is obvious, in case of violation of the terms of the contract and infringement of the rights of entrepreneurs - there is no one to ask", - the employee of Atameken underlines.

We will also add that the National Chamber of Entrepreneurs sent inquiries on the problem to the Ministry of Defense and the Main Military Prosecutor's Office. Today the situation is not resolved, but we will hope that the military department will take action.

About the further steps and the results of the resolution of this dispute, we will tell in the following material.