PROCUREMENT REVIEW PANEL

Transcription

1 P.SH 08/12 PROCUREMENT REVIEW PANEL, appointed by the President Pursuant to the article 105 as well article 106 of the Law on Public Procurement of the Republic of Kosova no.04/l-042, amended and supplemented by Law No. 04/L-237, amended and supplemented Law no.05/l-068, amended and supplemented Law no.05/l-092, composed of: Mr. Blerim Dina President, Mr. Goran Milenković referent, Mr. Nuhi Paçarizi member, deciding according to the Judgment of the Basic Court, Department for Administrative Affairs, A. No. 348/2012, dated: 10 of January 2017, where is approved the appeal of the plaintiff Petrol Company with residence in Prishtina, whereas is cancelled the decision of the Procurement Review Body with no.08/2012 of the 09 of February 2012, regarding with procurement activity with title Supply of fuels for motor vehicles, with procurement no.: PTK/11/11/342/111, initiated by the Contracting authority (CA) Post and Telecomm of Kosova, on the 31 of July 2017 has issued this: DECISION I. Approved, partly grounded the complaint of the EO Petrol Company from Prishtina, regarding with procurement activity with title Supply of fuels for motor vehicles, with procurement no.: PTK/11/11/342/111, initiated by the Contracting authority (CA) Post and Telecomm of Kosova. II. Remains in force, the decision of the Contracting authority- Post and Telecomm of Kosova (PTK), regarding with the procurement activity with title Supply of fuels for motor vehicles, with procurement no.: PTK/11/11/342/111, considering the fact that the economic operator was rewarded with contract has signed and implemented the contract. III. Complaining economic operator Petrol Company from Prishtina, it is recommended to address the competent court for eventual compensation of the damage caused. IV. Implemented Decision of the Basic Court-Department for Administrative Affairs-Prishtina with A. No. 348/12, of the

2 REASONING Economic operator Petrol Company sh.p.k from Prishtina, as a dissatisfied party on the 13 of January 2012, filed a complaint with protocol no 08/12, against the notification for cancellation of contract award from the contracting authority regarding the procurement activity Supply of fuels for motor vehicles, with procurement no. PTK / 11/11/342/111, initiated by the Contracting Authority (CA) - Post and Telecom of Kosova, claiming that contracting authority has violated the essential provisions of the LPP, such as: - Violation of the article 7 of the LPP- Equality in treatment, not discrimination; - Violation of the article 26 of the LPP - Signature of the public contract; - Violation of the article 62 of the LPP- Completion of the procurement activity Procurement Review Body, upon receipt of the complaint, based on the article 113 and 114 of the LPP no. 03 / L-241, has authorized the review expert to review the implementation of the procurement activity Supply of fuels for motor vehicles, with procurement no. PTK / 11/11/342/111, initiated by the Contracting Authority (CA) - Post and Telecom of Kosova, and to determine the validity of all complaining claims filed in the complaint, and has ascertained that CA-PTK for the abovementioned procurement activity on the 10 of November 2011 has published the contract notice in accelerated timeframes. On the 13 of December 2011, published the contract award notice and rewarded for contract the Petrol Company as it was at the cheapest price. On the 06 of January 2012 the contracting authority has published the notice of cancellation of the contract award notice, where in section IV. 4 of this notice states: Reasons for cancellation of contract award : A decision issued by an order of the Procurement Review Body requires the cancellation of the contract award notice. By decision of the CA protocol no / 12 dated 05 of January 2012 which is based on the decision of the Government of Kosova with protocol no.16/53 of the 21 of December There is a decision of the Government of Kosova with no. 16/53 of the 21 of December 2011 in which the enacting clause writes: 1. Established the Central Public Enterprise Post of Kosova sh.a 2. Central Public Enterprise Post of Kosova sh.a, it is established with the division of the postal unit from the current public utility Post and Telecommunication of Kosova sh.a 3. Obliged the Ministry of Economic Development and Public Enterprise PTK sh.a that the establishment of the new public enterprise Post of Kosova sh.a / PK, to be done based on the accounting division of PTK, approved by the Government Commission for Privatization of PTK. According to the expertise's report, the CA on the 05 of January 2012 takes the decision no /12, which states: 1. To stop the procurement activity Supply with fuels for motor vehicles, with procurement no.: PTK / 11/11/342/111;

3 2. To initiate a new tender procedure with revised contract terms and requirements in accordance with the required changes: the contract should be in a 1 year time interval with the possibility of extension for 1 year and 2, the right of transfer also respects the imposed restrictions by the shareholder. CA has decided to proceed with the supply of fuel for generator to requests for Quotations, while for the supply of fuel for official vehicles at the level of PTK sh.a to continue until the selection of the economic operator. Review expert has ascertained that Post of Kosova has canceled the activity in question in the contrary to article 62 of the LPP. According to the expert CA did not respect article 26 of the LPP (signing of public contracts) even though the contract award notice was made on the 13 of December 2011 and the cancellation was made on the 06 of January 2012 it means that have passed 24 calendar days. EO recommended for contract can completely make the implementation of the second point of the decision of the CA no /12 dated 05 of January 2012, without initiating any new procedure. According to the expertise, the government's decision did not hinder the procurement activity, since accounting divisions should be made which is feasible. The contracting authority should request from the economic operator that the supplies made to be allocated in invoice according to the requests of the CA for the purposes of accounting separation. The review expert has ascertained that CA was supposed to proceed with the signing of the contract, since the EO recommended for contract in this case in the quality of the plaintiff could have adapted to the requirements of the contracting authority regarding billing the supplies made. The framework contract under Article 38 paragraph 2 may not have a shorter duration as this may also make the right to transfer the inheritance of the contract. Following the expertise's report, the PRB on the 09 of February 2012 has made a decision rejecting the complaint of the EO Petrol Company as unfounded, and confirmed as grounded the decision of the Post for cancellation of the contract award notice. The Review Panel based its decision on the fact that the cancellation of the contract award notice was a result of the decision of the Government no.16/35 of 21 of December 2011, as well as the decision of AD KE PTK sh.a dated 05 of January 2012, whereby CA due to objective events created as a result of the abovementioned decisions, as well as the re-construction of the corporation respectively the decision for division of the business unit- PTK had to cancel the activity. On the 08 of March 2012, EO Petrol Company filed a lawsuit with the Basic Court in Prishtina, alleging that the decision of the PRB PSH. no.08/12 of 09 of February 2012 was issued in the contrary to the erroneous assessment of the factual situation and the provisions of the substantive law regarding the procurement activity were flagrantly violated. The plaintiff stated in the lawsuit that CA- PTK sh.a, it has canceled the procurement activity according to an order of the PRB that does not actually exist and that the PRB had to prove all the facts.

4 Basic Court in Prishtina on the 10 of January 2017, with Judgment A. no. 348/2012, approved the lawsuit of the plaintiff Petrol Company and annulled the decision of the PRB. Assessing the legality of the disputed decision pursuant to Article 44 of the LAD, the court based on the admissible evidence and the statements of the litigants, found that the lawsuit of the plaintiff is grounded. The Court has found that in order to assess the legality of the decision affected by the lawsuit, regarding the contested fact, first it referred to Article 26.4 of Law no. 04 / L- 042 on Public Procurement in the Republic of Kosova (LPP). Based on the notification for contract award and notification for cancellation of contract award, according to the court it is proved that CA did not sign the contract with the winning EO, now the plaintiff neither after the expiration of 10 days from the date of publication of the contract award notice. It is also not proven that CA in the meantime received any communication from the PRB or the court which would be legal reason according to the above provisions for not signing the contract. Furthermore, in the notice for annulment of the contract award, it is highlighted that the reason for the cancellation is an order issued by the PRB requesting the cancellation of the contract award notice, whereas nor in the administrative procedure at the respondent and during the main trial is not verified that there is such an order or decision issued by the respondent. Therefore, regarding this the court has ascertained that such a decision or order was never taken by the respondent to the PRB and that CA on the notice of cancellation of the contract award acted arbitrarily in violation of the abovementioned provisions. The Court has evaluated that CA notification for the cancellation of contract award made in violation of article 62 of the LPP because there were no legal reasons for the termination of the activity, much less after the opening of tenders. Such violations should have been considered by the respondent when deciding on the plaintiff's appeal, which would be relevant to the resolution of the case. In this sense, the court has found that there are contradictions in the acts in the view of the established facts, which in the essential points have not been fully verified and as a result an unjust conclusion is drawn from the point of view of the factual situation. The above-mentioned shortcomings are such that the aggrieved decision is made unjust and in contrary to the law, respectively the challenged decision is not based at all on the provisions that regulate the case here assigned, therefore the court obliges the defendant body to the re-procedure act upon the remarks in this judgment and after removing the shortcomings mentioned, to make a fair and law-based decision. At the hearing session of the main review of the 31 of July 2017, which was held without the presence of the parties in conformity with Article 26 paragraph 1 of the Rules of Procedure of the Procurement Review Body no. 200/17 of the , where were present the members of the review panel, were reviewed the memos of the case by checking and analyzing the documentation for the procurement procedure which consists of: authorization of initiation of the procurement activity, notice for contract, minutes on the bid s opening, decision on establishment of the bid s evaluation commission, bid s evaluation report, contract award notice, notification for cancellation of the contract

5 award notice, complaint of the economic operator, PRB expert s report, the memo of the parties to the proceedings, the Judgment of the Basic Court in Prishtina - Department for Administrative Affairs A. no. 348/2012 of the 10 of January Review panel, having in mind the chronology of the performance of the procurement activity, the previous complaint has ascertained that on the 06 of January 2012 the contracting authority has made the publication of: notice for cancellation of the contract award notice, where in section IV. 4 of this notice states: Reasons for cancellation of contract award : A decision issued by an order of the Procurement Review Body requires the cancellation of the contract award notice, whereas from the case files it is verified that there is no order issued by the PRB for cancellation. The review panel has ascertained that on the 09 of February 2012, has taken the decision by which he rejected as ungrounded the complaint of the EO Petrol Company, while has established as grounded the decision of the cancellation of the contract award notice. The PRB based its decision on the fact that the cancellation of the contract award notice came as a result of the decision of the Government no.16/35 of the 21 of December 2011, as well as the decision of AD KE PTK sh., on the 05 of January 2012, whereby CA due to objective events created as a result of the abovementioned decisions as well as the re-construction of the corporation respectively the decision to divide the business unit- PTK had to cancel the activity, therefore the panel finds as partly grounded the complaint of the EO Petrol Company as it is seen that PRB has supported the decision taken in a government decision. The review panel in the case of decision making considered that although the complaining claims of the complaining economic operator are grounded, but at this stage decided that the decision of the contracting authority to leave in force, since the contract for this procurement activity is signed and the same has been fully implemented, although the contracting authority has violated the provisions of the LPP. Therefore, review panel ascertains that the complaining economic operator in the concrete case for the alleged damage-caused by the contracting authority Post and Telekom of Kosova for non-compliance with the provisions of the LPP, should address to the competent court for compensation of the damage. Review panel conform article 117 of the LPP decided as in the enacting clause of this decision and implement the Judgment of the 10 of January 2017, A. no.348/2012 of the Basic Court - Department for Administrative Affairs by which the lawsuit was approved of the plaintiff, whereas was cancelled the decision of the PRB with no. 08/2012 of the 09 of February 2012, ascertained that the complaint of the complaining EO is partly grounded because there is no order of the PRB to cancel this activity, but the Panel evaluates that since this matter has been returned to retrial after a long time and now this procurement activity has been completed, the party can address to the competent economic court for compensation of damage.

6 Legal advice: Aggrieved party can not appeal against this decision, but it can file charges for damage compensation within 30 days, after the receipt of this decision with the lawsuit In the Basic Court In Prishtina at the Department for Administrative Affairs. President of the Review Panel Mr. Blerim Dina Decision to be submitted to: 1x1 CA- Post and Telecom of Kosova 1x1 EO Petrol Company 1x1 Archive of the PRB 1x1 For publication on the website of the PRB.