I.O.'S ORDER OF THE MINISTER OF NATIONAL ECONOMY OF THE REPUBLIC OF KAZAKHSTAN

of February 27, 2018 No. 80

About modification and amendments in some orders of authorized body on state planning

I ORDER:

1. Approve the list of some orders of authorized body on state planning to which changes and additions are made.

2. To provide to department of budget investments and development of the state private partnership in the procedure established by the legislation:

1) state registration of this order in the Ministry of Justice of the Republic of Kazakhstan;

2) within ten calendar days from the date of state registration of this order in the Ministry of Justice of the Republic of Kazakhstan the direction it the copy in paper and electronic type in the Kazakh and Russian languages on official publication in periodic printing editions, and also in the Republican state company on the right of economic maintaining "The republican center of legal information" for official publication and inclusion in Reference control bank of regulatory legal acts of the Republic of Kazakhstan;

3) placement of this order on Internet resource of the Ministry of national economy of the Republic of Kazakhstan;

4) within ten working days after state registration of this order in the Ministry of Justice of the Republic of Kazakhstan submission to Legal department of the Ministry of national economy of the Republic of Kazakhstan of data on execution of the actions provided by subitems 1), 2) and 3) of this Item of the order.

3. To impose control of execution of this order on the first vice-minister of national economy of the Republic of Kazakhstan.

4. This order becomes effective after ten calendar days after day of its first official publication.

It is approved Minister of Finance of the Republic of Kazakhstan March 1, 2018

__________ B. Sultanov

Approved by the Order of the acting minister of national economy of the Republic of Kazakhstan of February 27, 2018, No. 80

The list of some orders of authorized body on state planning to which changes and additions are made

1. Bring in the order of the Minister of Economy and Budget Planning of the Republic of Kazakhstan of February 23, 2009 No. 24 "About approval of the Technique of cost determination of subject to concession, total cost of the state support of activities of concessionaries and sources of cost recovery" (registered No. 7, 2009) the following change is published in the Register of state registration of regulatory legal acts for No. 5604, in collection of acts of the central executive and other central state bodies of the Republic of Kazakhstan:

in the Technique of cost determination of subject to concession, total cost of the state support of the activities of concessionaries and sources of cost recovery approved by the specified order:

state Item 23 in the following edition:

"23. The cost of the state guarantee on non-state loans is calculated as the amount of the principal debt on loan provided with the state guarantee and remunerations on it on most high interest rate predicted for concession, the charge added for 1 period and 1 month, or for the period in accordance with the terms of the agreement:

= D * (1 + r/p + r/12) (4),

where:

- the cost of the state guarantees;

D - the amount of principal debt on the loan guaranteed by the state;

r - the high annual rate of remuneration which is most predicted for concession on the loan guaranteed by the state in accordance with the terms of the loan agreement or the bid. At development stage of the tender documentation the upper bound of percentage corridor of the base rate established according to article 19 of the Law of the Republic of Kazakhstan of March 30, 1995 "About National Bank of the Republic of Kazakhstan", +1% is determined as LIBOR rate + (plus) by 1% (for foreign currency loans) (for domestic currency loans);

p - amount of the periods of charge of remuneration on the loan guaranteed by the state in calendar year.".

2. Bring in the order of the Minister of national economy of the Republic of Kazakhstan of December 22, 2014 No. 157 "About some questions of planning and implementation of concessionary projects" (registered in the Register of state registration of regulatory legal acts for No. 10122, published on February 20, 2015 in information system of law of Ad_let) the following changes and amendments:

6) of Item 1 of the specified order to state the subitem in the following edition:

"6) Requirements to examination of the tender documentation, including in case of introduction in it of changes and amendments, the concessionary requests submitted by participants of tender when carrying out tender at the choice of the concessionary according to appendix 6 to this order;";

The rules of representation, consideration and selection of concessionary projects approved by the specified order to state in edition according to appendix 1 to this order;

in the Rules of carrying out tender at the choice of the concessionary approved by the specified order:

state Item 3 in the following edition:

"3. Consideration and selection of concessionary requests are performed by the commission on concessions (further - the Commission) created by the order of the Prime Minister on concessionary projects of the special importance or the organizer of tender on other projects, according to item 4 of article 19 of the Law.

Working body of the Commission is the corresponding organizer of tender.

The organizer of tender concerning the subjects to concession relating to republican property and provided in Item 2 of article 16 of the Law is the authorized state body of the corresponding industry.

The organizer of tender concerning the subjects to concession relating to utility property and provided in the list is the relevant local executive body of area, city of republican value, the capital on behalf of which the responsible state body performing functions of the organizer of tender is determined by the decision of the akim.";

in Item 7:

15) to state the subitem in the following edition:

"15) the direction the organizer of tender of the draft agreement of concession on approval to authorized bodies on state planning, on budget implementation, and also the state body performing management in spheres of natural monopolies according to Items 55-57 of Rules;";

17) to state the subitem in the following edition:

"17) adoption of the state concessionary obligations by the Government of the Republic of Kazakhstan is performed by the central authorized body on budget implementation based on the decision of the Government of the Republic of Kazakhstan respectively on each separate concessionary project of the special importance, on other concessionary projects - based on the positive decision of the relevant budget commission.

Adoption of the state concessionary obligations by executive bodies is performed by local authorized bodies on budget implementation based on the decision of maslikhat of area, the city of republican value, the capital on each separate concessionary project according to the budget legislation of the Republic of Kazakhstan;";

19) to state the subitem in the following edition:

"19) based on the decision of the Commission specified in the subitem 16) of this Item based on the positive decision of the relevant budget commission, following the results of adoption of the order of the Government of the Republic of Kazakhstan (on the concessionary project of the special importance) or decisions of maslikhat the agreement of concession, taking into account results of approval of the agreement of concession is signed with the winner of tender;";

add with subitem 20-1) of the following content:

"20-1) registration of the agreement of concession by the central authorized body on budget implementation or its territorial subdivision;";

in Item 10:

1) to state the subitem in the following edition:

"1) representation by the participants of tender who underwent qualification selection, bids with the feasibility study for the concessionary project or the developed design estimates and also introduction by the potential concessionary of providing the bid according to article 18-1 of the Law.

If expected subject to concession belongs to the sphere of natural monopolies, it is necessary to put the investing program developed according to requirements of the legislation of the Republic of Kazakhstan in spheres of natural monopolies;

If the participant of tender makes the technical and technological and ecological decisions provided in the feasibility study for the organizer of tender, the participant of tender in addition represents the letter guarantee on adoption of such decisions as a part of the bid with the feasibility study for the concessionary project.

If the participant of tender accepts the marketing and (or) institutional and (or) social and economic decisions provided in the tender documentation, the participant of tender in addition represents the letter guarantee on adoption of such decisions as a part of the bid with the feasibility study for the concessionary project;";

5) to state the subitem in the following edition:

"5) the direction the organizer of tender of the draft agreement of concession on approval in the central or local authorized body on state planning, on budget implementation, and also in the authorized state body performing management in spheres of natural monopolies according to Items 55-57 of Rules;";

7) to state the subitem in the following edition:

"7) adoption of the state concessionary obligations by the Government of the Republic of Kazakhstan is performed by the central authorized body on budget implementation based on the order of the Government of the Republic of Kazakhstan respectively on each separate concessionary project of the special importance, on other concessionary projects - based on the positive decision of the relevant budget commission.

Adoption of the state concessionary obligations by executive bodies is performed by local authorized bodies on budget implementation based on the decision of maslikhat of area, the city of republican value, the capital on each separate concessionary project according to the budget legislation of the Republic of Kazakhstan;";

9) to state the subitem in the following edition:

"9) based on the decision of the Commission specified in the subitem

6) this Item, based on the positive decision of the relevant budget commission, following the results of adoption of the order of the Government of the Republic of Kazakhstan (on the concessionary project of the special importance) or decisions of maslikhat the agreement of concession, taking into account results of approval of the agreement of concession is signed with the winner of tender;";

add with subitem 10-1) of the following content:

"10-1) registration of the agreement of concession by the central authorized body on budget implementation or its territorial subdivision;";

state Item 18 in the following edition:

"18. The bid is form of expression of consent of the potential concessionary applying for participation in tender to enable the realization of the concessionary project according to the requirements and conditions provided by the tender documentation.

Refining of the concessionary request recognized by the best concessionary request is performed by negotiations.

During negotiations modification of tender conditions, and also of initial parameters and characteristics of the concessionary request is not allowed.

Conditions of tender are understood as concession subject, terms of concession and technical parameters of subject to concession.

Initial parameters and characteristics of the concessionary request are understood as the name of the participant of tender, the commitment form on participation in tender established in the tender documentation, the amount of providing the bid.

On projects of the special importance modification and amendments in tender conditions, and also in initial parameters and characteristics of the concessionary request in case of essential change in the exchange rate of national currency is allowed during tender in compliance with Item 4-1 of article 20 of the Law.

The decision on modification and amendments in tender conditions, including on the cost of installation and construction works and to payments of the state, and also in initial parameters and characteristics of the concessionary request is performed based on the protocol of negotiations and the decision of the commission and submitted for consideration of the Republican budget commission.

In case of modification and amendments in tender conditions, and also in initial parameters and characteristics of the concessionary request on projects of the special importance according to Item 4-1 of article 20 of the Law relevant decisions are drawn up by the legal decision of the commission.

At the same time, carrying out additional approval and examination of the tender documentation is not required.";

the thirteenth the subitem 3) of Item 19 to state the paragraph in the following edition:

"In case of acceptance by the potential concessionary marketing and (or) institutional and (or) the social and economic decisions provided in the tender documentation of the organizer of tender, these solutions of appropriate section are used in case of development of the feasibility study as a part of the concessionary request (in case of carrying out tender at the choice of the concessionary with use of two-stage procedures);";

state Items 49 and 50 in the following edition:

"49. The organizer of tender sends to authorized body on state planning concessionary requests for conducting their examination.

The authorized body on state planning within 2 (two) working days from the date of receipt of the concessionary request sends it to the specialized organization for concession or the legal entities determined by local executive body in the case established by subitem 3-2) of article 13 of the Law for conducting examination.

The specialized organization for concession or the legal entities determined by local executive body in the case established by subitem 3-2) of article 13 of the Law carries out expertize of concessionary requests within 20 (twenty) working days from the date of their representation.

Aggregate term of consideration by authorized body on state planning of concessionary requests constitutes 25 (twenty five) working days.

50. All bids submitted by participants of tender taking into account compliance to requirements of the tender documentation, the conclusions of authorized body on state planning according to the concessionary request and assessment of conformity of potential concessionaries to qualification requirements are considered by the commission, and are determined the best concessionary request about what the protocol which is signed by the chairman, members and the secretary of the Commission is constituted.

If at the scheduled time to the organizer of tender bids did not arrive or all submitted bids do not conform to requirements of the tender documentation, tender is considered not taken place.

If only one bid is submitted, this request is considered by the commission according to part one of this Item.";

state Item 53 in the following edition:

"53. Banks, the financial organizations, independent experts and the interested other third parties can be involved in negotiations by the participant of tender in coordination with the organizer of tender.

Results of negotiations are drawn up in the form of the protocol signed by authorized persons of the organizer of tender and the participant of tender.

Following the results of negotiation the relevant decision of the commission is made on their results.

During negotiations modification of tender conditions, and also of initial parameters and characteristics of the concessionary request, except for case, stipulated in Item 4-1 article 20 of the Law is not allowed.";

state Item 55 in the following edition:

"55. Following the results of negotiation the organizer of tender sends for approval draft agreements of concession, including in case of introduction of changes in them and (or) amendments, with application of copies of the protocol on determination of the best concessionary request, protocols of negotiations between the Commission and the participant of tender which concessionary request is recognized as the best, on refining of the concessionary project and terms of the contract of concession, and also on the concessionary projects providing the guarantee of the state and (or) the state guarantee, the copy of the decision of the budget commission in the central and local authorized bodies on state planning, the central authorized body on budget implementation and in the state body performing management in spheres of natural monopolies on the concessionary project realized in spheres of natural monopolies.

Contents of the agreement of concession are determined according to article 21 of the Law.

The local authorized body on state planning for conducting examination directs the draft agreement of concession in the legal entities determined by local executive body in the case established by subitem 3-2) of article 13 of the Law within 2 (two) working days from the date of its receipt.

Examination is performed within 5 (five) working days from the date of receipt of the draft agreement of concession in the legal entities determined by local executive body.

The central or local authorized body on state planning approves the draft agreement of concession within 5 (five) working days or sends to the organizer of tender motivated notes, with appendix of the developed recommendations about elimination of notes. The local authorized body on state planning applies results of the carried-out expertize of the legal entities determined by local executive body in the case established by subitem 3-2) of article 13 of the Law.

Approval of the draft agreement of concession, including in case of introduction in it of changes and (or) amendments, is drawn up in the form of the letter on approval, or not approval of reflection of the reasons not of approval on each case in point.

Draft agreements of concessions, including in case of introduction of changes in them and amendments, and also additional materials:

1) are represented by the organizer of tender by the separate cover letter on the title form signed by the first head or person replacing it with submission of the electronic copy of appendices to the tender documentation;

2) are signed by the first head of the organizer of tender or person replacing it;

3) are polistno initialed by the head of the structural unit of the organizer of tender.

In cases of submission of information in incomplete amount the organizer of tender, and also need of submission of the additional information provided by the draft agreement of concession including in case of modification and amendments in agreements of concession, the legal entities determined by local executive body in the case established by subitem 3-2) of article 13 of the Law can require submission of the necessary additional information.

The legal entities determined by local executive body in the case established by subitem 3-2) of article 13 of the Law in case of need send inquiries by submission of the missing and (or) additional information to the corresponding organizer of tender with the direction of the copy of request to authorized body on state planning within 5 (five) working days from the date of receipt of document package.

The organizer of tender represents at the same time to local authorized body on state planning and the legal entities determined by local executive body in the case established by subitem 3-2) of article 13 of the Law the missing and (or) additional information within 5 (five) working days from the date of receipt of request or notifies on need of additional terms for submission of information, but no more than 15 (fifteen) calendar days.

At the same time terms of conducting examination from the date of sending an inquiry and before submission of necessary information stop.

In case of completion of draft agreements of concessions, including in case of introduction of changes in them and amendments according to results of examination of the legal entities determined by local executive body, the organizer of tender makes the decision on resumption of negotiations.

The modifed draft agreement of concession following the results of negotiations is repeatedly sent for approval in the central or local authorized body on state planning.

The local authorized body on state planning for conducting examination repeatedly directs the modifed draft agreement in the legal entities determined by local executive body in the case established by subitem 3-2) of article 13 of the Law.

Approval by the central and local authorized body on state planning of draft agreements of concession, including in case of introduction of changes in them and amendments is carried out to parts of compliance of the draft agreement of concession or compliance of the changes made to it and additions to the basic principles of PPP and concession, and also observance of requirements of the current legislation of the Republic of Kazakhstan in the field of PPP and concession.";

state Items 57 and 58 in the following edition:

"57. The authorized state body performing management in spheres of natural monopolies approves the draft agreement of concession, including in case of modification and amendments in the agreement of concession regarding procedure for forming and approval of rates (the prices, rates of charges) on services (goods, works), within 10 (ten) working days from the date of its representation or sends to the organizer of tender motivated notes.

In case of approval of the draft agreement of concession regarding procedure for forming and approval of rates (the prices, rates of charges) on regulated services (goods, works) the state body performing management in spheres of natural monopolies approves the investing program and provisions of the agreement of concession determining:

1) forming of the costs included in rate (the price, rate of charge);

2) forming of expenditure items within technical and technological consumption rates of raw materials, materials, fuel, energy, and also normative technical losses;

3) establishment of the list of the expenses which are not considered when forming rate (the price, rate of charge);

4) volume of investment and procedure for return of the invested capital;

5) forming and restriction of the profit included in rate (the price, rate of charge);

6) application of accrual methods of depreciation of fixed assets;

7) criteria of quality of operation of subject to concession;

8) procedure for determination of quality of operation of object;

9) provision to the third parties of limited target use of subject to concession;

10) terms (periods) and sources of financing of carrying out capital repairs or upgrade of objects;

11) the rights and obligations of the concessionary connected with forming and approval of rates;

12) carrying out revaluation of fixed assets and directions of use of means of the depreciation charges provided by the tariff estimate of the subject of natural monopoly;

13) control of activities in spheres of the natural monopolies, including control of amount and quality made products, works and services in the concessionary project.";

58. Following the results of tender at the choice of the concessionary the decision of the Commission determines the best concessionary request, and the applicant is recognized the winner of tender.

If financing of the concessionary project is supposed at the expense of the non-state loans attracted under the state guarantee and (or) the guarantee of the state, the decision of the Commission on results of tender is made taking into account the conclusion of financial examination of the concessionary project of the central authorized body on budget implementation according to the budget legislation.";

add with Items 62 and 63 of the following content:

"62. The organizer of tender (concedent) provides registration of the agreement of concession in the procedure established by the legislation of the Republic of Kazakhstan.

63. The conclusion of the direct agreement between the concedent, the concessionary and creditors of the concessionary for implementation of concessionary projects of the special importance provides the following consecutive stages:

the concessionary and (or) the creditor of the concessionary introduces to the concedent the draft of the direct agreement according to article 26-2 of the Law;

the concedent considers and submits the draft of the direct agreement for commission session, the Prime Minister created by the order on concessionary projects of the special importance according to item 4 of article 19 of the Law.

The commission considers the draft of the direct agreement and if necessary involves experts according to the Instruction about procedure for creation, activities and liquidation of advisory advisory bodies under the Government of the Republic of Kazakhstan and working groups approved the order of the Government of the Republic of Kazakhstan of March 16, 1999 No. 247;

The commission approves the final draft of the direct agreement following the results of negotiations of the parties of the direct agreement;

in case of availability in the direct agreement of the provisions attracting expenses of the government budget, the matter is submitted for consideration of the Republican budget commission;

the conclusion of the direct agreement based on decisions of the Commission on concessions and to the Republican budget commission.";

The rules of carrying out monitoring of agreements of concession, carrying out monitoring and assessment of implementation of concessionary projects approved by the specified order to state in edition according to appendix 2 to this order;

in Rules of selection of concessionary projects for provision or increase in amount of the guarantees of the state approved by the specified order:

state Items 28 and 29 in the following edition:

"28. Based on the decision of the Government of the Republic of Kazakhstan the concedent taking into account the conclusions of financial and economic examinations develops the project of changes and amendments in the agreement of concession which sends for approval in authorized bodies on state planning and on budget implementation, and also in the authorized body performing regulation in spheres of natural monopolies if the concessionary project is implemented in spheres of natural monopolies.

29. After receipt of approval of the project of changes and amendments in the agreement of concession, authorized bodies on state planning and on budget implementation, and also the authorized body performing regulation in spheres of natural monopolies the supplementary agreement to the agreement of concession which is subject to registration in the procedure established by the legislation of the Republic of Kazakhstan is signed";

in Requirements to development or adjustment, and also conducting the necessary examinations of the feasibility statement on the concessionary project approved by the specified order:

5) of Item 2 to state the subitem in the following edition:

"5) feasibility of the concessionary project - project compliance to documents of system of state planning (compliance on the realization period, financing sources, etc.) and/or feasibility study compliance to the investment offer on which there is positive conclusion of authorized body on state planning;";

Requirements to examination of the tender documentation, including in case of introduction in it of changes and amendments, the concessionary requests submitted by participants of tender when carrying out tender at the choice of the concessionary, approved by the specified order to state in edition according to appendix 3 to this order.

3. Bring in the order of the acting minister of national economy of the Republic of Kazakhstan of November 25, 2015 No. 725 "About some questions of planning and projects implementation of public-private partnership" (registered in the Register of state registration of regulatory legal acts for No. 12717, published on February 4, 2016 in information system of law of Ad_let) the following changes and amendments:

The rules of planning and projects implementation of public-private partnership approved by the specified order to state in edition according to appendix 4 to this order;

To state the approval procedure of the list of the projects of public-private partnership planned to realization, approved by the specified order in edition according to appendix 5 to this order;

according to the procedure of selection of projects of public-private partnership for provision or increase in amount of guarantees of the state approved by the specified order:

state item 4 in the following edition:

"4. The guarantee of the state is provided within the limit set by the law on the republican budget of the projects of PPP included in the list of projects of the PPP offered to financing at the expense of the non-state loans attracted under the guarantee of the state for the corresponding period according to the subitem 9) of Article 229 of the Budget code of the Republic of Kazakhstan.

The central authorized body on budget implementation in case of approval of the tender documentation of the project of PPP (further - the tender documentation) providing the guarantee of the state approves the amount of the guarantee of the state offered by developer of the tender documentation or business plan to the project of PPP (on direct negotiations) and the essential conditions of the tender documentation connected with provision of the guarantee of the state.

The central authorized body on state planning by results of approval of the tender documentation, the business plan to the project of PPP (on direct negotiations) submits for consideration of the Republican budget commission the draft of the list of projects of PPP on which provision of the guarantee of the state within limit of the next financial year, with indication of amount of the guarantee of the state is possible.

Carrying out tender by determination of the private partner with provision of the state support of activities of the private partner, the conclusion of the contract with the potential private partner in direct negotiations with provision of the state support of activities, the guarantee of the state on infrastructure bonds within agreements of PPP is performed after approval by the Government of the Republic of Kazakhstan of the list of projects of the PPP offered to financing at the expense of the non-state loans attracted under the guarantee of the state.";

state Item 8 in the following edition:

"8. The potential private partner (borrower) for receipt of the guarantee of the state provides to the organizer of tender the bid providing the guarantee of the state on infrastructure bonds within agreements of PPP according to Rules of planning and projects implementation of the PPP approved by this order.

The potential private partner (borrower) in direct negotiations for receipt of the guarantee of the state provides to the organizer of direct negotiations the business plan to the project of PPP, providing the guarantee of the state on infrastructure bonds within agreements of PPP, according to Rules of planning and projects implementation of the PPP approved by this order.";

in Requirements to development or adjustment, and also conducting necessary examinations of the feasibility statement on the projects of public-private partnership approved by the specified order:

2) of Item 2 to state the subitem in the following edition:

2) feasibility of the project of PPP - project compliance to documents of System of state planning (compliance on the realization period, financing sources, etc.) and/or compliance of the feasibility study for the project of PPP to the investment offer on which there is positive conclusion of authorized body on state planning;";

add with appendix 7 "Technique of cost determination of creation and (or) reconstruction of object of public-private partnership, total cost of the state support and sources of cost recovery of subjects of public-private partnership" according to appendix 6 to this order.

Appendix 1

to the Order of the acting minister of national economy of the Republic of Kazakhstan of February 27, 2018 No. 80

Appendix 1

to the Order of the Minister of national economy of the Republic of Kazakhstan of December 22, 2014 No. 157

Rules of representation, consideration and selection of concessionary projects

Chapter 1. General provisions

1. These rules of representation, consideration and selection of concessionary projects (further - Rules) are developed according to subitem 7-6) of article 9 of the Law of the Republic of Kazakhstan of July 7, 2006 "About concessions" (further - the Law) and subitem 4-5) of Item 1 of article 13 of the Law of the Republic of Kazakhstan of July 9, 1998 "About natural monopolies".

2. Rules determine procedure for the organization of representation, consideration and selection of concessionary projects.

3. In these rules the following concepts are used:

1) predesigns - calculations for profitable and account part of operating, investing and financial activities of the concessionary project with indication of assumptions. Predesigns are made in the Microsoft Office Excel format with the opening formulas, and it is represented on the paper and electronic medium;

2) the local project - the concessionary project realized on the objects (existing or assumed to construction), belonging to utility property, and/or receivers of economic benefits from implementation of the concessionary project are subjects of one area, city of republican value, the capital and according to article 13 of the Law;

3) the republican project - the concessionary project realized on the objects (existing or assumed to construction), belonging to republican property, and/or receivers of economic benefits from implementation of the concessionary project are subjects of two and more areas, the cities of republican value, the capital and according to article 12 of the Law.

4. The organizer of tender attracts legal entities on advisory support of the concessionary projects determined by the Government of the Republic of Kazakhstan or local executive body for study of the tender documentation, draft agreements of concession, and also for participation in negotiations with potential concessionaries according to Item 1 of article 20 of the Law.

The central or local authorized body on state planning introduces the conclusion on rendering services in advisory support of concessionary projects for consideration of the relevant budget commission.

On the amounts of financing of services in advisory support of each concessionary project approved by the budget commissions, the authorized body on state planning creates the list of services in advisory support of concessionary projects which is performed at the expense of means of the appropriate distributed budget program of authorized body on state planning.

5. The list of the objects offered to transfer to concession for the medium-term period (further - the list) is created by authorized body on state planning according to article 16 of the Law.

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