26.07.2013

Amendments to the Law on licensing activities in the field of architecture, urban planning and construction

Kazakhstani Law on licensing activities in the field of architecture, urban planning and construction has been changed. On the 5th February 2013, the Government of the Republic of Kazakhstan approved the Regulation № 89 "On Certain Issues Regarding Licensing Activities in the Field of Architecture, Urban Planning and Construction" (Rules), which establishes rules for licensing activities in the field of architecture, urban planning and construction, including:

1)    Foreign Work Experience

To obtain I and II category licenses of for the relevant  project activities and/or construction work, applicants’ (foreign citizens and foreign legal entities) work experience  can be confirmed not only by a Kazakhstani license for this type of activity, but also by other documents equivalent to a Kazakhstani license permit (Permit Document). In this case, the applicant's (foreign individuals and foreign legal entities) work experience is calculated from the date the Permit Document was issued. Please note that the term "equivalent" document is not specified in Kazakhstani law and, in practice, it is likely to be interpreted by the relevant Authorized State Bodies (- Competent Authorities) at their own discretion.

Moreover, please note that, in practice, to obtain I and II category licenses of for the relevant project activities and/or construction work Competent Authorities often require continuous activity on the part of the applicant in the required type of activity. In other words, if within a certain period (e.g. for 10 years) or over a certain period of time prior to applying for a license (for example, 3 years), the applicant is not involved in the required type of work, there is a risk that the applicant will not be granted a license.

Such approach of the Competent Authorities is not directly determined by the provisions of  existing Law and, in particular, by the Rules, but such situations often are often encountered in practice.

In addition, in practice, when applying for I and II category licenses for the relevant project activities and/or construction works, the applicant is required to submit an official document/reference letter from the authority which issued the relevant Permit Document.

Furthermore, for foreign individuals or foreign legal entities to obtain  I and II category licenses of, the Permit Document (issued by foreign state authorities) submitted by the applicant , must be executed in accordance with the current Kazakhstani Law (notarized/apostiled/legalized).

2)    References from  ‘relevant local executive bodies’

According to the Rules, if it is not possible to submit  references from customersregarding completed work and/or from  operators of facilities previously constructed by the applicant, it is allowed to submit  positive reviews from  ‘relevant local executive bodies’. However the Rules do not stipulate the number of such references required.

Furthermore the Rules do not include either the criteria for judging whether local executive bodies are "relevant" and, consequently, able to issue references, or for defining their «locality» (i.e whether ‘local’ is defined according to the place of construction or the place where the applicant is registered).

3)    Acts of acceptance and Acts of the works performed

The Rules establish that if the applicant has operational experience as a general contractor and subcontractor, it is allowed to submit Acts of Acceptance and/or Acts of the Work Performed (signed by the general contractor) (Acts) by the applicant.  Meanwhile, the total number of Acts required must be submitted to confirm constructions performed under subcontracts.

However, there is a practical problem when foreign individuals and foreign legal entities submit such Acts, because it is possible to prove the completion of construction or separate project works using other documents. In practice, if such Acts cannot be submitted by foreign individuals and foreign legal entities, the latter may provide documents equivalent to such Acts. However, the problem of how to define the "equivalence" of such documents remains an open issue. Moreover, in order to check the authenticity of such equivalent documents the Competent Bodies may require that other additional documents be submitted.

4)    Sufficient number of Declared Resources

According to the Rules, in order to obtain a license for the relevant project activities and/or construction work the applicant must have certain so called "Resources":

  • Technical workers;
  • Production facility equipped with an administrative building and workplaces;
  • Minimal complete set of equipment for performing the required activity.

When the applicant assembles a package of required documents for applying for the license he faces a practical problem: how many of those or other Resources are required and/or will be sufficient for obtaining the license for certain subtypes of activity. The Rules do not establish a requirement for a specific number of necessary Resources, and in practice, the Competent Body judges this at its own discretion.

 

Saule Nitaliyeva

Junior lawyer

GRATA Law Firm

licences@gratanet.com