PROCUREMENT REVIEW PANEL

Transcription

1 P.SH 302/17 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. Nuhi Paçarizi referent, Mr. Goran Milenković - member, deciding on the complaint lodged by the Economic operator Eltoni Com & Hidro Project Sh.p.k - Gjakova, against the contract award notice for EO N.P.T Berisha Com Gjakova, regarding with the procurement activity Destruction - Execution of facilities build without permission, illegal constructions, and other services with procurement no , initiated by the Contracting Authority (CA) Municipality of Gjakova, on the has issued this: DECISION I. APPROVED, as partly grounded the complaint of the Economic operator Eltoni Com & Hidro Project Sh.p.k - Gjakova, regarding with the procurement activity Destruction - Execution of facilities build without permission, illegal constructions, and other services with procurement no , initiated by the Contracting Authority (CA) Municipality of Gjakova. II. CERTIFIED, the notification for contract award of the CA/ Municipality of Gjakova, regarding with the procurement activity Destruction - Execution of facilities build without permission, illegal constructions, and other services with procurement no III. Contracting authority within 10 days must inform in written the Review panel for all actions taken regarding with this procurement activity and other parties in the procedure. IV. Non-compliance with this decision obliges the Review Panel conform with the legal provisions of article 23.9 and 131 of the Law for Public Procurement of Kosova No.04 / L-042, amended and supplemented by Law No. 04/L-237, Law no.05/l-068, Law no.05/l-092, to take action against the Contracting Authority. V. Since the complaining claims of the complaining economic operator Eltoni Com & Hidro project - Gjakova, are approved as partly grounded it is returned the insurance fee of the complaint in the amount deposited when filing a complaint. VI. Obliged complaining economic operator that conform article 33 point 6 of the Rules of Procedure of the PRB, within sixty (60) days is obliged to request to take back the funds, otherwise these funds will be confiscated and will pass to the budget of the Republic of Kosova.

2 REASONING Contract notice regarding with the procurement activity was done on the: The bid s opening was made on the: , where participated seven economic operators. Contract Award Notice regarding this procurement activity was done on the where was recommended for contract the economic operator Npt Berisha Com - Gjakova. Against the notification for contract award regarding this procurement activity, economic operator Eltoni Com & Hidro Project Sh.p.k - Gjakova, on the has made a request for reviewing at the contracting authority. On the the contracting authority has taken the decision to reject the request for reviewing of the economic operator, Eltoni Com & Hidro Project Sh.p.k - Gjakova. Complaining EO Eltoni Com & Hidro Project Sh.p.k - Gjakova, as a dissatisfied party has lodged a complaint at the PRB, on the 29 of August 2017 with no. 201/17 against the notification for contract award, regarding the procurement activity Destruction - Execution of facilities build without permission, illegal constructions, and other services with procurement no , performed by the Contracting Authority (CA) Municipality of Gjakova claiming that: Contracting authority has acted in violation of articles 7, 41 and 59 of the Law on Public Procurement of the Republic of Kosova. Contracting authority has acted in violation of articles 7, 41 and 59 of the Law on Public Procurement of the Republic of Kosova. Procurement Review Body, conform article 113 and 114 of the LPP on the has authorized the review expert to review the validity of all complaining claims of the complaining party. External professional expert in the report dated has ascertained that: Regarding the complaining claim that CA has violated Articles 41 and 42 as well as Article 22 of the OGPPR related to the notification of the results of the re-evaluation, EO the complainant alleges that this violation is intentional where instead of the notification for contract award CA has published the notice for cancellation in e-procurement. The expert considers that we are dealing with a technical mistake of CA, because the CA has notified you with standard letter for unsuccessful bidders, and also with this notice you have been notified also for the EO to whom the contract was awarded, and we in this case consider that the complaining claim does not stand. That the contracting authority has violated article 59 and 41 of the OGPPR that during the re-evaluation of the tender did not apply and respected the requirements that it has specified in the tender dossier that are related to points 9.1 and 9.2 of the TDS. The expert considers that this complaining claim is clarified with the decision of the RP on the 28/07/2017 with the protocol number 101 / 17. The CA has requested that the EO have at least 5 workers as well as a graduated construction engineer and a Geodesist. That the EO recommended for contract has presented as a professional staff the construction engineer and a Geodesist who is a worker of MA of Junik and the other employed in the private company TOFAJ, the expert considers that this complaining claim is clarified with decision of the RP dated 28/07/2017 with the number of prot.201 / 17. Regarding this complaining claim regarding the requested mechanism, in the prior decision of the RP, it was obliged that CA in

3 conformity with article 72 and 59.2 of the LPP to request additional clarification regarding these evidence and to verify if the evidence offered for some equipment required and proven such as: Customs (DUD) bills, booklets whether are in line with TDS requirements. CA on the requested from EO recommended for contract NTP Berisha Company Request for documentation and additional information for the procurement activity Destruction - Execution of facilities build without permission, illegal constructions, and other services with procurement no , that based on the decision of the PRB of 28/07/2017 to clarify the mechanism required in accordance with TDS: Trailers up to 40 ton, Trailers up to 5 ton, Mini excavator 3 ton, Truck with trailer 10m. The expert clarifies that based on the case files the complaining claim is based on the fact that even after the request for additional information based on article 72 of the LPP, EO recommended for contract failed to provide the minimum required by CA according to TDS for the equipment Trailer truck up to 40ton. Regarding the complaining claim with respect to the mini excavator 3ton the complaining claim does not stand for the fact that the EO recommended for contract has managed to prove that possesses this equipment requested by the CA by providing clear evidence such as customs stamps (DUD), booklets etc. Regarding the complaining claim on the mini excavator for up to 5 ton, the EO recommended for the contract did not offer customs stamps (DUDs) or booklets, but has offered contracts for a mini excavator between Drini Company and Berisha Company but in this contract in each of the articles is not specified the weight of the mini excavator as required in the TDS and this complaining claim is based. Regarding the complaining claim about the Truck with a crane trailer of 10m this complaining claim does not stand for the fact that EO recommended for contract has managed to prove that possesses this equipment required by CA by offering the cooperation agreement, and also to this contract is attached the booklet in compliance with contract. The professional expert evaluates that CA Municipality of Gjakova did NOT act in accordance with article 59.4 of the LPP during the examination, evaluation of the offer and article 69 of the LPP regarding the technical and professional capacity - the required mechanism. The professional expert based on the aforementioned assessments recommends the review panel that the procurement activity with the title Destruction - Execution of facilities build without permission, illegal constructions, and other services with procurement no , to return to reevaluation and complaint of the EO NPSH Eltoni Com & Hidro Project Shpk to be approve as partly grounded. Complaining economic operator on the , by memo, has notified the PRB, that it agrees partly with the opinion of the review expert Contracting authority on the , by memo, has notified the PRB that it does not agree with the opinion of the review expert. At the hearing session of the main review of the , which conform article 26.1 of the internal regulation of the PRB was held without the presence of the parties involved in the procedure where were present the review panel, the external expert review expert of the PRB, where were reviewed the case files by checking and analyzing the documentation for the procurement procedure which consists of: authorization of initiation of the procurement activity, notification for contract, record on bid s opening, decision on establishment of evaluation commission of the bids, the bid s evaluation report, the contract award notice, the complaint of the economic operator, the report of the PRB expert, the memos of the parties to the procedure.

4 During the presentation in the hearing session the review expert Mr. Tafa stated: I must notify the review panel that on the occasion of compiling the expertise's report of the , for the complaint no.308/17, I have made a permutation which is related with complaining claim of the complaining EO. The word is for the demand for equipment, namely Trailers truck up to 40 tons. For this equipment EO recommended for contract possesses the equipment in accordance with the CA requirements set in the tender dossier. The CA's request for this point was up to 40 tons, meaning that it could be equipped with equipment even smaller but not larger than 40 tons. Whereas the EO recommended has offered a device with a capacity of 37,740 Tons, therefore as such has fulfilled the request of the CA. Regarding the trailer truck up to 5 tons, EO recommended for contract has an agreement, which I present to the review panel, but for me this was not convincing for the fact that in this agreement as you can see, it is not properly dimensioned, but to the top of the trailer registration number, the word 5 tons is handwritten (with a chemical pencil). The same one also possesses a customs clearance for equipment, but this device exceeds the tonnage set in the TDS, it means it is over 5 tons. Based on the above mentioned, I recommend to the review panel to be partially grounded the complaint of the complaining EO, and the case returns for re-evaluation. Review panel after reviewing the case files, reviewing the claiming points of the complainant, findings, concrete analysis and recommendation of the review expert, statement of the parties in the procedure, discussion and screening the entire evidence during the hearing session for the main review, explains that Contracting authority has implemented the decision of the review panel no.201/17 of the as it has done the re-evaluation of the bids and has requested additional clarification conform article 59.2 and 72 of the LPP from the economic operator recommended for contract. Review panel explains that in the TDS at article 9.1&9.2 Contracting authority, required as documentary evidence for the equipment-device has requested that List of technical work equipment-device available to be proved with copies of booklets on their ownership or with customs stamps or purchase invoices or contract on lease. Regarding with complaining claim of the complaining EO that EO recommended for contract did not meet the request of the CA for trailer truck up to 40 ton, review panel explains that the request of the CA was to be provided evidence for trailer truck up to 40 ton, whereas EO recommended for contract has provided evidence (Customs stamps) that has trailer truck 37 ton which it means that the request is met entirely. Review panel ascertains that complaining EO itself admits such a fact in the complaint when highlighted that EO recommended for contract has provided evidence for trailer truck of ton. Evidence provided from EO recommended for contract are within request of the CA. Regarding with this trailer truck EO recommended for contract has provided a cooperation agreement of the with economic operator NN Asfalti for loaning the device: one trailer truck of 30540kg and another one 37740kg, therefore the request regarding this equipment is met by the EO recommended for contract. Review panel regarding with the complaining claim of the complaining EO that EO recommended for contract did not meet the request of the CA for trailer truck up to 5 ton as it has provided evidence for 4 ton, ascertains that the requests dealing with and compiled by requesting up to 5 ton then every evidence provided up to 5 ton is acceptable, as in this request for trailer truck is not requested minimum but only the maximum, as for trailer truck up to 5 ton also for trailer truck up to 40 ton.

5 Regarding with complaining claim of the complaining EO that EO recommended for contract did not provide sufficient evidence and that do not match evidence for half trailer truck 5 ton and mini excavator of 3 ton, review panel considering the evidence that had available and considering also the statements of the PRB expert, at the hearing session ascertains that EO recommended for contract has provided a contract on lease with physical person Mr. Isa Idrizaj for this project to take on lease 1) half trailer truck, color red, the mark Blomenroehr, 2010 chassis number W AEB34201, registration number XB and 2) mini excavator used mark; hitachi This agreement is written by computer but on the side of data for these equipment are written the tonnage, of 5 ton for trailer truck ad 3 ton for mini excavator. Review panel explains that this contract contains data: and contains signatures of both parties and writes it is signed for the purpose of completion of the project published by the Municipal Assembly of Gjakova Destruction - Execution of facilities build without permission, illegal constructions, and other services with procurement no Regarding with the complaining claim of the complaining EO for trailed truck 5 ton, review panel ascertains that EO recommended for contract has provided also a customs stamp for a half of trailer truck owned by EO Drini Company with weight of Review panel regarding complaining claim of the complaining EO with regard to the truck with crane of 10m3, explains that EO recommended for contract has presented a cooperation agreement of the with company Rsm Company which company with support us for this procurement activity with machinery, as: Truck Mercedes Actross JF, 1989, truck with crane Scania HG, 1992, trailer truck De angelis XB, 2002, Damper terex 25-30, 1999, excavator with tires Komatsu, 2002, excavator with chain Cobelko, 2005, whereas the same economic operator has presented booklet of the truck with plates HG 1992 with weight 10650kg. Also EO recommended for contract has provided evidence for a truck kiper with weight of 13100kg owned by Rsm Company. Review panel considering the price offered by the economic operator recommended for contract in the value of:88, and the price offered by the complaining economic operator in the value of:107, which economic operator is irresponsible, ascertains that exceeding the weight of any machinery in a small amount is considered a small deviation according to article 59 paragraph 4 point (ii) where he writes contains only small deviation that cannot cause material change or deviation from characteristics, terms and other requests filed in the contract notice and in the tender dossier; in condition that any such deviation to be quantified, as much as possible, and to be taken into account during the evaluation and comparison of the tenders. Review panel after analyzing the documents and evidence that has had available for the two economic operators ascertains that complaining EO is irresponsible, as it has not offered at all the validity of the tender, namely at part C at the tender submission form, point 4 is foreseen to be written the period of time of the validity of the tender, whereas this economic operator this space has left it empty and did not write the period of time of the validity of the tender although in article 21.1 of the TDS is required that the period of time of validity of the tender to be 60 days. Therefore in the absence of the fulfilling the period of time of the validity of the bid this economic operator is considered irresponsible. Having in mind the above mentioned fact, results that complaining EO in this procurement activity is party without legal and material interest conform article 4

6 paragraph 1.26 of the LPP, with regard to article 111 paragraph 1-8 of the LPP, since in no way this complaining EO could not prove that alleged violation threatened to cause damage to this economic operator at the same time with these circumstances and facts the same operator in no way could be awarded winner of this tender. Review panel having in mind that complaining EO is irresponsible, having in mind the price of the EO recommended for contract who offered with the lower price than all other EO in this procurement activity, and having in mind article 59 paragraph 4 of the LPP point (ii) comes to conclusion that Contracting authority justly had considered the purpose of the Law on Public Procurement respectively article 1 where writes purpose of the Law is to ensure efficient, transparent and right use of the public funds, public sources as well as all funds and other sources of the contracting authorities in Kosova and article 6 paragraph 1 where writes All Contracting authorities are obliged to ensure that public funds and public sources to be used economically, at the same time considering the purpose and the subject of the procurement. Regarding with complaining claim of the complaining EO that CA has no right to accept additional documents from economic operator, since cannot be verified objectively review panel explains that this possibility and this action allows article 72 paragraph 1 and 2 of the LPP, whereas in paragraph 3 of this article writes clearly Ensuring information that is missing or providing information will apply only for documents its existence is fixed, before expiry of the deadline for submission of tenders, and can be verified objectively. So it is allowed to be provided additional evidence in condition that the date of these documents to be before the expiry of deadline for submission of tenders, so has acted also the Contracting authority in report with EO recommended for contract. Regarding with complaining claim that EO recommended for contract did not meet the requests foreseen in article 9.1&9.2 with regard to the references and completed works and evidence for the required workers, review panel explains that this matter was treated in prior decision of the with no.201/17, therefore this matter for the review panel is Res Judicata according to article 24 paragraph 12 of the Rules of procedure of the PRB. The review panel conform article 117 of the LPP, as well the evidence presented above, decided as in the provision of this decision. 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 Municipality of Gjakova 1x1 EO Eltoni Com & Hidro Project Sh.p.k - Gjakova 1x1 Archive of the PRB 1x1 For publication on the website of the PRB.