PROCUREMENT REVIEW PANEL

Transcription

1 P.SH 349/17 364/17 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, Law no.05/l- 068, Law no.05/l-092, composed of: Mr. Nuhi Paçarizi - President, Mr. Blerim Dina referent, Mr. Goran Milenković - member, deciding on the complaint lodged by the economic operator: NTSH Shqiponja - Gllogovc, and EO Global Parajsa Vushtrri, against contract award notice where is recommended for contract EO DPH Luzern - Prishtina, regarding with the procurement activity with title: Hotel Services in the Assembly of the Republic of Kosova, with procurement no: 101/17/3285/211, initiated by the Contracting authority (CA) Assembly of Kosova, on the has issued this: DECISION I. APPROVED, as partly grounded the complaints of the economic operators NTSH Shqiponja - Gllogovc, and EO Global Parajsa Vushtrri, regarding with the procurement activity with title: Hotel Services in the Assembly of the Republic of Kosova, with procurement no: 101/17/3285/211, initiated by the Contracting authority (CA) Assembly of Kosova. II. CANCELLED, the notice of the contract award of the CA/ Assembly of Kosova, regarding with the procurement activity with title Hotel Services in the Assembly of the Republic of Kosova, with procurement no: 101/17/3285/211, and the case is returned for re-evaluation. 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 article 131 of the Law on 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 complaints of the complaining economic operator NTSH Shqiponja - Gllogovc, and EO Global Parajsa Vushtrri, are approved as partly grounded, it is returned the insurance fee of the complaint in the amount deposited when filing the complaint. VI. Obiged complaining EO 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 this procurement activity was done on the: Bid s opening was done on the: , where five economic operators participated. Standard Letter for Economic Operator NTSH Shqiponja - Gllogovc as unsuccessful by the Contracting Authority, was sent on the: Standard Letter of Economic Operator Global Parajsa - Vushtrri as eliminated by the Contracting Authority, was sent on the: Notification for contract award regarding the procurement activity from the contracting authority was done on the , where is recommended for contract EO: D.P.H Luzern -Prishtina. Against the notification for cancellation of the procurement activity economic operator NTSH Shqiponja - Gllogovc, on the: , has made a request for reviewing at the contracting authority. Against the notification for cancellation of the procurement activity economic operator Global Parajsa - Vushtrri, on the , has made a request for reviewing at the contracting authority. On the the contracting authority has taken the decision to reject the requests for reviewing of the economic operators NTSH Shqiponja - Gllogovc and Global Parajsa - Vushtrri. Complaining economic operator NTSH Shqiponja - Gllogovc, as a dissatisfied party, has lodged a complaint at the PRB, on the 29 of September 2017 with protocol no. 349/17 against the notification for contract award regarding the procurement activity with the title Hotel services in the Assembly of Republic of Kosova, with procurement no.: 101/17/3285/211, developed by the contracting authority Assembly of Kosova claiming that Contracting authority has acted in opposition with these legal provisions: Article 56 of the LPP Article 59 of the LPP Article 66 of the LPP Article 68 of the LPP Article 72 of the LPP Complaining economic operator Global Parajsa - Vushtrri, as a dissatisfied party, has lodged a complaint at the PRB, on the 02 October 2017 with protocol no. 364/17 against the notification for contract award regarding the procurement activity with the title Hotel services in the Assembly of Republic of Kosova, with procurement no.: 101/17/3285/211, developed by the contracting authority Assembly of Kosova claiming that Contracting authority has acted in opposition with these legal provisions: Article 13 of the LPP; Article 51 of the LPP; Article 59 of the LPP; Article 60 of the LPP; Article 61 of the LPP; Article 69 of the LPP; Article 39 and 40 of Rules OGPP.

3 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. The review expert in the report of the stated: The main allegations of the parties according to the statements in the complaints relate to the disrespect of some of the requirements and criteria published in the tender dossier, during the evaluation of the bids. Initially we are explaining the common complaining claims of the complainants, against the offer of the EO recommended for contract EO NPH Luzern, mainly related to the technical and professional capacity provided for in Paragraphs 9.1 & 9.2 of the TDS, respectively the evidence offered against the projects realized over the past three years as well as the evidence against the staff presented. Economic operator, NPH Luzern, in the case files has a copy of the document with description / list of similar service contracts completed in the last three years. Eight (8) positions / projects are outlined in the same list. Among them, (5) the projects have described the procurement number, the value of the contract and the date of termination of the contract (according to the list, the total value of the five projects exceeds the value of 1,000, ). The requirements on the technical and professional skills of the CA in the tender dossier were clear, it was required to be offered the list of projects realized within the previous period in the amount of minimum 280, euro. Also, it is required to be clearly specified in the references, also to indicate the contract value realized. The evidence offered against the above mentioned does not correspond to the request of the CA, respectively none of the copies of the references attached to the bid does not contain the value of the contract concluded, moreover the projects described in the list according to the description do not correspond to all the contracts / references presented in the offer. However, on the , CA has addressed the same EO through the standard letter / request for clarification of the tender, in order to provide it with evidence, invoice, or any other relevant document relevant for the references listed. Towards the same evidence, according to the case files, is provided the Banking Transaction Verification (PCB) together with bank transactions where the total of credits amounted to 460, but for the period from while the request of the CA has been CA, as well as on the , repeated the same request to EO, DPH Luzern, and the same operator provides some tabular form with description of service values by month, desccribed / calculated, and consequently such explanations CA accepts them as being true. Regarding what was stated above our assessment is that the explanations provided by the EO, recommended for the above mentioned description do not argue the realization of the services according to the value and the period requested by the CA. The complainant NTP Global Parajsa through the statement in the complaint disputes also the references of the EO, NTH Shqiponja, concretely states that the list of references does not cover the value and period requested by the CA. After reviewing the case files, it results that EO NTH Shqiponja has a list of six (6) projects described, and as documentary evidence has provided copies of the references, which proves that the same covers and exceeds the value (280,000 ) required by CA for the period Another common complaining claim of the complainants against the tender of EO D.P.H Luzern has to do with the presented evidence, towards the staff. Also the same request was clear, one (1) contract manager, two (2) cooks and one (1) assistant cook were required. For the same staff (cook and assistant cook), diplomas or certificates are

4 required. Against the same request, the economic operator recommended for contract award in the case files possesses a list of 21 described positions, among them, in the description five (5) cooks and three (3) assistant cooks. The documentary evidence provided to the staff part of the tender of EO DPH Luzern, is describing the following: Mr. Rexhep Azemi, cook, according to the copy of the diploma in German language, however there is also the Albanian translation of the same diploma by a licensed translator (complaining claim of EO Global Parajsa ) Mr. Rexhepi according to the decision turns out to be named the manager of the company, but according to the description in the decision, for managing the contracts of companies related to state institutions. (the description in the decision does not refer to this project). Mr. Bekim Gashi, in the description / appearance, in a diploma copy, a graduate in Hotels. Mr. Lundrim Krasniqi and Mr. Egzon Halili, Certified, as a restaurant assistant, Mr. Elhami Ahmeti and Mr. Muhamet Bajraktari, possess copies of certificates issued by the EO DPH Luzern, Mrs. Hidajete Bajraktari, has completed the vocational / technical school for the processing of food items of plant origin (the name of the same is not listed on the staff list). Economic operator NTH Shqiponja, through the statement in the complaint emphasizes that EO, recommended for contract award according to business certificate, does not possess adequate activity, namely the activity custom food supply does not correspond with this procurement activity. Against the same allegation our explanation is that CA, according to the tender dossier and the contract notice, did not specify any particular number of any particular activity. Following is an explanation of the complaining claims of the complaining EO Global Parajsa, namely the reasoning of the elimination where CA, has textually emphasized: You did not fill in the table price description Recapitulation of the price Group A 1-13 and B 1-30 the total price (the part mentioned is incomplete. It is evident that the complainant NTP Global Parajsa in the Price Recapitulation section (part of the prior calculations and prior measures) the total price for Hot and cold drinks As well as Food, described it in the section dedicated to the total weighted price, and consequently did not provide the weighted price. It is also evident that the same operator has offered awards for all the pre-measures and pre-calculation positions but did not make their weights, as opposed to what CA, at the pre-measures and pre-calculation has emphasized: Bids will be evaluated based on this value. This value should be noted in the Tender Form, which is read at the public opening of the bids and will be recorded in the opening minutes. Regarding what was said above, our assessment is that the description as such is contradictory to paragraph 14 of Article 28 of the OGPP rules, where it is explicitly stated:... the total un weighted price is read during the process of bid s opening, namely not offering the weighted price should be considered a mistake that could be corrected, since EO NTP Global Parajsa has offered the prices in all the items required through the pre-measures and the precalculation (see, par.4, article 59). The complainant NTP Global Parajsa, through the statement in the complaint also alleges that EO recommended for contract award as well as EO NTH Shqiponja, have offered manipulative prices for some positions (Referring to the offer of EO DPH Luzern for the prices : Expreso, 0.20 cents; Capucino 0.20 cents; beef soup 0.20 cents; chicken soup 0.20 cents; Spaghetti 300 gr cents; Large pica tuna 1.00 euro; Local wine 1L 0.70 cents Imported wine 1 L 0.80 cents. For the same complaining claim, our assessment is that, according to article 61 of the LPP, if an EO submits a tender that is, or appears to be, abnormally low, then the CA would ask from the bidder explanation for the constituent elements of tender. The other complaining claim of the EO Global Parajsa, relates to the tender security, to EO DPH Luzern, and NTH Shqiponja. The same operator in the case files posses the tender insurance

5 policies according to the request of the CA foreseen in point 13.2 of the TDS as the required value (4 000 ), period (120 days), the name of the CA, economic operator, title and procurement number, while on the other complaining claim that it is stated that EO, NTP Global Parajsa has used two types of stamps on offer, our assessment is that the same EO has used only one type of stamp, but apparently there have been some duplicate papers stamped in advance and the same stamp is placed on them. Finally, in support of the above explanations, our proposal for CA is to re-evaluate the bids in order to have a more realistic presentation of the bids towards the requests as applied in the tender dossier and to request additional clarification towards the evidence according to provisions and rules of the effective LPP. Recommendations towards the complaining claims: To clarify the position and qualification of the school restaurant assistant, to argue if the EO recommended for award has provided services on request and requested value, apply article 61 of the LPP and require clarification versus bidders' positions and verify whether they have offered abnormally low prices (PPRC, have published reference prices for food items) and to make the scoring of the financial bids of the bidders against the bids that have offered the unpublished price. Review expert, based on the explanations presented in the report, proposes the review panel that the procurement activity Hotel services in the Assembly of Republic of Kosova, with procurement no. Procurement: 101/17/3285/211, to return to RE-EVALUATION. At the same time, we recommend that the complaint of the EO, NTH Shqiponja and NTP Global Parajsa to be approved as partially grounded. CA on the , by memo, has notified the PRB, that does not agree with the opinion of the review expert. Complaining economic operator NTSH Shqiponja - Gllogovc on the , by memo, has notified the PRB that agrees in partially with the opinion of the review expert. Complaining economic operator Global Parajsa - Vushtrri on the , by memo, has notified the PRB, that partially agrees with the opinion of the review expert. At the hearing session of the main review of the , where were present the review panel, representative of the contracting authority, representatives of the complaining EO, PRB expert, were reviewed the case files by checking and analyzing the documentation for the procedure procurement, which consists of: authorization of initiation of the procurement activity, notification for contract, minutes on the bid s opening, decision on establishment of the bid s evaluation commission, bid s evaluation report, contract award notice for this procurement activity, complaint of the economic operator, PRB expert s report, memos of the parties to the procedure. During the presentation at the hearing session the representative of the complaining EO Shqiponja, Mr. Nika stated: We stand by the complaint and the complaining claims and we support the report of the review expert. CA has violated Article 56 on Selection of Participants, Article 59 Bid s Evaluation, article 6 Professional suitability because EO recommended does not meet the criteria, as in his business certificate No is an individual business and has main activity with license number 5621 which means supplying custom-made food for occasions. In this case CA has requested hotel services that EO Luzern is not licensed for this activity. We have substantiated facts that he did not meet the professional suitability as required in the tender dossier because EO has issued certificates for workers as chef and waiter without being licensed for this activity.

6 We have grounded suspicions that it did not fulfill the criteria for reference as it is required in the tender dossier where it is stated that EO must provide evidence that successfully concluded contracts of the same nature for the last three years , in total worth 280,000. EO did not meet this requirement since it has provided references to unfinished contracts or even the 2013 that was not requested in the tender dossier. We find that this EO does not meet the criteria according to the terms and the tender dossier and we request that our complaint to be approved and return the case for re-evaluation. During the presentation at the hearing session the representative of the complaining EO Global Parajsa, Mr. Musliu stated: We with expert s report agree at some points, but regarding the abnormally low prices, as EO Luzern and Shqiponja have offered price and not normally low and manipulative, with 0.20 euro espresso, cappuccino, beef soup, chicken soup, and salads 300gram for 0.80, one liter wine one is 0.70 other 0.80 imported. Therefore we have noticed that here too many manipulative prices were offered and it is impossible to realize this contract by two EOs. We agreed with the expert who found that we were eliminated unfairly, where with OGPP the payment is made based on the bidding, according to instruction 03/2015 article 4.7, and here the expert gives a finding according to the LPP and PPRC rules and here we agreed with the expert. So I think the case should be re-evaluated. During the presentation at the hearing session the representative of the CA-Assembly of Kosova Mr. Halili stated: We did not agree with the expertise's report so we have prepared a written answer-explanation provided to the review panel. CA in the contract notice has clearly stated the requirement contracts concluded within therefore based on the request of the CA should also be considered contracts already signed but that have been completed within this period. Regarding the price description table, we have an interpretation from the PPRC that I offered the expert now in the hearing session, where it is seen that CA Kosova Assembly has acted fairly and professionally in terms of weighted prices. The weighed price should be set on the C form and the description table should set the two prices while the contract is applied at prices not weighed. Regarding the certificates submitted in the tender we can ascertain that EO Luzern has fulfilled the requests of the CA because the CA did not specify who could issue the certificates, therefore an EO according to the LPP cannot be declared irresponsible for a request that has not been announced by CA. Regarding the activity of the EO, we have requested the business registration certificate and recommended EO has offered it, while for professional technical skills CA has placed other requests, such as the turnover and realized contracts that EO recommended has fulfilled, where with clarifications upon receipt of the material. In this case the EO has submitted a reference where it did not have the value but we requested the bank turnover, and after the turnover we have found the amount related to this contract and the request of the CA has been fulfilled. In this case the CA has considered that there are not normally low prices, and the comparison through the PPRC list cannot be obtained as the list is of 2015 and the prices have changed in the market. Metering units are also the same and it has been impossible to make comparison. Also in the list of PPRC is only for supply and in this case it is a service. Given the above mentioned arguments the evaluation of CA was done in accordance with the LPP and secondary laws in force so we stand by the decision of the CA for contract award.

7 During the presentation at the hearing session review expert of the PRB Mr. Bibaj stated: I have described the complaining claims however I refer to the reasoning why I have recommended a re-evaluation related to the common claims versus the bid recommended for contract award, related to professional technical capacity. Through the report I have evaluated that the same EO recommended for contract has failed to prove that he has carried out similar projects according to the value and time period required by the CA. Despite that the CA has twice requested additional clarification from the same EO. Upon request, the same EO has offered the bank circulation, where the same turnover amounts to 460,000, however for the period from to While the request was for the years Accordingly, it does not prove that it covers the value of the request according to the period of the same request. While in the second clarification, the same EO offers some tabular forms described that cover the request - although they are not relevant evidence according to the request of the CA. Regarding the justification of elimination of EO Global Parajsa where CA has emphasized that the same did not fulfill the recapitulation of prices in the sense that the same did not offer the weighted price. It is true that the same bidder did not offer the weighted price but offered the total price. According to the OGPP rules, the opening price is read the total price not weighted. Representative of the CA offered me a letter - interpretation from the PPRC, where the same holds the letter of , while my report is dated I stand by the expertise's report and the recommendations given in the report. In the final speech the representative of EO Shqiponja Mr. Nika stated: We stand by the complaint and complaining claims and we propose to the review panel to return the case for re-evaluation. In the final speech representative of EO Global Parajsa Mr. Musliu stated: We have received a standard letter for elimination from the CA - Kosova Assembly where they have eliminated us for abnormally low prices for three items of 70 items where the same has certified PRB by decision / In the final speech representative of the CA Mr. Halili stated: We stand by the decision of the CA and we propose to the panel to authenticate the same as grounded by rejecting the complaints of the complaining EO as unfounded. The Review Panel after reviewing the memos of the case, reviewing the complaining points of the complainant, ascertainments, concrete analysis and recommendations of the review expert, statements of the parties to the proceedings, discussing and screening the evidence as a whole during the hearing session of the main review regarding the complaining claim filed for the same point by both economic operators stating that the EO recommended for contract did not meet the requirement as part of the technical and professional capacity where it was requested that the operator should provide evidence that he has successfully completed the contract of the same nature, followed by references in the last three (3) years 2014,2015 and 2016, in total in the amount of not less than 280, euro, the review panel considers this complaining claim as grounded since after the review of the documents, the screening of the evidence as a whole, clarifications by the review expert finds that the recommended economic operator has provided a copy of the memos with descriptions for the above mentioned requirements but these evidences do not correspond with the request of the CA, none of the copies of the references attached to the bid does not contain the value of the contract concluded,

8 also the projects described in the list according to the description do not match all the contracts or references presented in the offer. Review panel ascertains that also regarding this point it is worth mentioning that EO in question even after the standard letter from the CA for clarification and the possibility to provide relevant evidences or relevant invoices for the listed references, the EO failed to argue the realization of the services according to the value and period required by CA. Review panel ascertains that regarding the other complaining claim lodged by both complaining economic operators, versus the offer provided by the operator recommended for contract, regarding point 1 and 2 to the documentary evidence required, which should have been offered a contract manager, and to offer proof that there is an employee: a chef, assistant cook, a bartender, a waiter, specifying that the cook must have 3 (three) years of work experience, the chef and baker must have 2 (two) years of experience and the waitress has 1 (one) year of work experience, after reviewing and checking the documents review panel considers that the EO recommended for contract conforms the list with described positions referring to the request of the CA, except for the testimony of Rexhep Azemi, cook, according to the copy of the German language diploma, however, there is also an Albanian-language translation of the same diploma by the licensed translator, Mr. Rexhepi according to the decision turns out to be named the manager of the company, but according to the description in the decision, for managing the contracts of companies related to state institutions therefore a description of such a decision does not refer to the request and this project. Review panel ascertains that regarding the allegation of the complaining EO N.T.H Shqiponja where it is stated that EO recommended for contract according to business certificate does not possess adequate activity, namely the activity supply with custom food, where does not correspond with this procurement activity, review panel comes to an end by explaining that CA in the tender dossier did not request by specifying any given number of any particular activity. Review panel ascertains that regarding the other complaining claim of the complaining EO Global Parajsa, namely the reason why it was eliminated from this procurement activity, where the CA has evaluated that the EO in question did not fill in the table, the price description, the recapitulation of the price, the total price, the review panel concludes that concretely at the price recapitulation point the complaining EO has described the dedicated section but did not offer the weighted price according to the request of the CA, as well the EO in question has offered prices for all the pre-measures and pre-calculation positions but has not made the weighing of them despite that the CA at pre-measures and pre-calculation has emphasized that Bids will be evaluated based on this value. This value should be stated in the Tender Form, which is read at the public bids opening and will be noted in the opening minutes therefore it results that CA could have identified a mistake that can be corrected, as EO has offered the prices in all the items required through the pre-measures and the pre-calculation. Review Panel finds that the complaining claim of the economic operator NTP Global Parajsa is not sustainable when the same in his complaint states that Economic Operator N.T.H. Shqiponja has provided a list of references that does not cover the value and period required by the contracting authority for the fact that after the verification of the evidence of clarification and verification of the evidence by the review expert it is ascertained that this economic operator possesses a list with a total of six ) projects described and as documentary evidence has provided copies of the references, among

9 which it is proved that it covers and exceeds the value required by the contracting authority in the amount of 280, Review panel regarding the complaining claim of EO NTP Global Parajsa that economic operator recommended for contract award LUZERN and economic operator NTH Shqiponja, for some positions for the procurement activity in question offered manipulative prices and not normally low, ascertains that conform article 61 of the LPP, is the responsibility of the CA to consider a tender as abnormally low and during the reevaluation CA should develop the inter partes procedure as foreseen the rules for tenders not abnormally low in order to investigate and review the important elements that cause the tender particularly low. Review panel conform article 117 of the LPP, and based on the presented evidence as above decided as in the provisions 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. Nuhi PAÇARIZI Decision to be submitted to: 1x1 CA Assembly of Kosova 1x1 EO- NTSH Shqiponja Gllogovc 1x1 EO- Global Parajsa - Vushtrri 1x1Archive of the PRB 1x1 For publication on the website of the PRB.