PROCUREMENT REVIEW PANEL

Transcription

1 P.SH 216/17 PROCUREMENT REVIEW PANEL, appointed by the President Pursuant to the article 105 paragraph 2, point 2.16, article 106, article 131 related with article 25 paragraph 9 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. Nuhi Paçarizi - President, deciding on the complaint lodged by the economic operator Shpërndarja Express sh.p.k with residence in Prishtina, which represented Kreshnik Gashi, regarding with the procurement activity with title Publication of notices in the newspaper for the needs of independent agencies, with procurement no. AQP / 17/036/236, initiated by the CA- Central Procurement Agency (CPA), on the 03 of August 2017 has issued this: DECISION I. Refused the complaint of the economic operator Shpërndarja Express sh.p.k with residence in Prishtina, regarding with procurement activity with title Publication of notices in the newspaper for the needs of independent agencies, with procurement no. AQP / 17/036/236, initiated by the CA- Central Procurement Agency (CPA), as ungrounded. II. Certified, the decision of the CA- Central Procurement Agency (CPA), the notification for cancellation of the procurement activity with title Publication of notices in the newspaper for the needs of independent agencies, with procurement no. AQP / 17/036/236, as grounded. III. Contracting authority within 10 days must inform in written the Review panel for all actions taken regarding with this procurement activity. IV. Non-compliance with this decision shall oblige the review panel conform legal provisions of the article 131 of the LPP no.04/l-042, to take action against the contracting authority, that doesn t respect the decision of the Review panel defined with this Law. V. Since the complaining claims of the complaining economic operator Shpërndarja Express sh.p.k with residence in Prishtina, are ungrounded it is confiscated the insurance fee of the complaint.

2 REASONING Contracting authority-central Procurement Agency (CPA), on the 08 of June 2017, has published the Contract Notice, regarding the procurement activity with the title Publication of notices in the newspaper for the needs of independent agencies, with procurement no. AQP /17/036/236. As a criterion for contract award was the most responsive tender with the lowest price. For this procurement activity have applied for 2 (two) economic operators, where according to the Bid s Evaluation Commission of 2 (two) economic operators are not accountable since they did not fulfill the selection criteria required in the tender dossier and in the notification for contract. Contracting authority on the 27 of June 2017 has published a notice for cancellation of the procurement activity. Against the decision to reject the request for reviewing, of the 03 of July 2017, economic operator Shpërndarja Express sh.p.k with residence in Prishtina, within the legal deadline has lodged a complaint in PRB. Points of Complaint: The complainant alleges that the evaluation commission after examining and analyzing this agreement came to the conclusion that: The agreement presented by you was an agreement made between N.SH.X. Media and Shpërndarje Express sh.p.k, an agreement which does not prove the connection between the economic operator that has offered in this procurement activity and the newspaper BOTA SOT. This agreement is considered by the commission as invalid for the nature of the procurement activity and your bid is considered as unacceptable. The complaint of the economic operator is timely and filed by the competent person. The complaint is ungrounded. Procurement Review Body after receipt of the complaint, based on the article 113 and 114 of the Law no.04 / L-042 on Public Procurement of the Republic of Kosova, as amended and supplemented by law no.04 / L-237, Law no.05 / L-068 and Law no.05/l- 092, on the 17 of July 2017, has authorized the review expert to review the validity of all complaining claims of the complaining party. Review expert, on the 25 of July 2017, submits to the review panel the expertise's report, where in the report regarding the complaining claim of the complaining economic operator stating that the contracting authority has done violation during the evaluation process, clarifies that the complaining economic operator did not specify which Legal provisions of the LPP were violated by the contracting authority Central Procurement Agency (CPA) and did not make a detailed description of the factual circumstances that imply a violation of the LPP, as required by Article 111 of the LPP but only mentioned contracting authority has committed violations during the bid s evaluation process. Regarding the complaining claim of the complaining economic operator saying: The evaluation commission after reviewing and analyzing this agreement came to the

3 conclusion that: The agreement presented by you was an agreement made between N.SH.X. Media and Shpërndarje Express sh.p.k, an agreement which does not prove the connection between the economic operator that has offered in this procurement activity and the newspaper BOTA SOT. This agreement is considered by the commission as invalid for the nature of the procurement activity and your tender considers it irresponsible, review expert based on the memos of the case explains, the complaining economic operator in the bid has attached General Agreement on Business Cooperation, Related to the , between N.SH.X. Media and Shpërndarje Express sh.p.k where article 2 of this agreement stipulates inter alia: The second contractor is the registered company ARBK and has all the rights set forth in the Law on Business Organizations in Kosova, therefore in this capacity will act on the printing and distribution of daily news and political newspapers with the name known to the public of Kosovo Gazeta Bota Sot. Also the second contractor undertakes to prepare, print and commercialize the newspaper and finally distribute it and sell it in Kosova... Based on what was stated above the review expert the complaining claims of the complaining economic operator qualifies as ungrounded, because the complaining economic operator in this procurement activity did not bid as a group of economic operators, and also on the bid did not specify that the company presented in the agreement including the newspaper Bota Sot has as a subcontractor as it is foreseen in article 30 of the LPP. Based on the explanations mentioned above, the review expert proposes to the review panel that the complaint of the complaining economic operator to reject as ungrounded, and to approve the decision of the contracting authority notification for cancellation of the procurement activity of the 27 of June Contracting authority Central Procurement Agency, through written memo of the 26 of July 2017, notifies the review panel that agrees with the expertise's report of the 25 of July Complaining economic operator through written memo of the 26 of July 2017, notifies the review panel that does not agree with the opinion of the review expert given in the expertise's report of the 25 July 25, During the procedure in front of this body were presented proof while doing the checking and analysis of the material of this procurement activity which consists of: from the authorization of this activity, the notification request for qualification, the minutes on the bid s opening, the decision on the establishment of the evaluation commission of the bids, bid s evaluation report, notification for cancellation of the procurement activity, complaint of the complaining economic operator, report of the review expert dated of the 25 of July 2017, the memo of the contracting authority and the complaining EO on the report of the review expert, as well as the statements of the parties during the hearing session. Representative of the complaining EO, during the hearing session, Mr. GASHI stated: The reasons for the complaint and disagreement with the experts was that we have provided some evidence when we complained, as evidence we have offered the contracts between Shpërndarje shpk and X Media, which is a newspaper representative of Bota Sot for Kosova, where it also testifies in the daily newspaper Bota Sot that we have brought as evidence last night, where is said Mazrekaj Media, which is with office in Switzerland, while publisher for Kosova is the newspaper Bota Sot is Shpërndarje

4 Shpk. The reason for the elimination was that Shpërndarje Express has no right to do marketing of the newspaper Bota Sot according to CPA. Representative of the complaining economic operator in the continuation of the presentation clarify: I have brought the testimony of the contract of Shpërndajra Express connected to the notary with X Median which represents the newspaper Bota Sot for Kosova, where article 4 states: is agreement between the parties with the right of printing, Newspaper advertising. In the final words the representative of the complaining EO Mr. Gashi stated: I propose that the complaint to be approved, because I am convinced that the agreement between the two companions is in order. Representative of the contracting authority Mr. Abazi, during the hearing session stated: this procurement activity was conducted according to the requests of independent agencies, for publication of daily newspaper reports, we have accepted the expert s report and we have agreed with the expertise, because it exactly complies with the findings which has also said the CA. The agreement that Shpërndarja Express & X Media. This agreement has no legal effect and is not an agreement with the gazette Bota Sot but is an agreement with another company. Also, this agreement, if it is read in article 2, undertakes to print and advertise the newspaper and distribute and sell it in Kosova, which has nothing to do with advertising because it has no procurement, is a general agreement that was signed in 2015, So I think there is no responsible economic operator. In the final words the representative of the CA Mr. Abazi stated: if the complaint is viewed was the point of the complaining point that we have eliminated for the reference it does not stand, so we propose that the complaint to be rejected and remains in force the decision of the CA. Review expert Ms. Bullatovci, at the hearing session stated: initially we wanted to clarify that complaining economic operator in the complaint did not mention what provisions of the LPP were violated by the contracting authority, which according to article 111 of the LPP it is an obligation to state which articles have been violated by CA during the evaluation process. Another issue is the agreement that mentioned the representative of the complaining EO and representative of the contracting authority, for which agreement I have given the clarification in number 3, where as an expert I think that in the concrete case the complaining economic operator if indeed there is cooperation with the newspaper Bota Sot in the bid it should have been emphasized that this newspaper has sub-contractor, or otherwise to bid as a group of economic operators, namely with the newspaper Bota Sot, so this was the reason I proposed to be rejected the complaint and to approve the decision of the CA. At the end of the presentation review expert emphasized, I stand by the expertise's report and the findings given in the report. The complaining claim of the complaining economic operator stating that the contracting authority has done violation during the evaluation process, clarifies that complaining economic operator in the complaint filed on the 12 of July 2017, did not specify which legal provisions of the LPP were violated by the contracting authority Central Procurement Agency (CPA) and did not provide a detailed description of the

5 factual circumstances that suppose the violation of the LPP, as is required in the article 111 of the LPP but has only mentioned the contracting authority has committed a violation during the bid s evaluation process. The complaining claim of the complaining EO that states: The evaluation commission after reviewing and analyzing this agreement came to the conclusion that: The agreement presented by you was an agreement made between N.SH.X. Media and Shpërndarje Express sh.p.k, an agreement which does not prove the connection between the economic operator that has offered in this procurement activity and the newspaper BOTA SOT. This agreement is considered by the commission as invalid for the nature of the procurement activity and your bid is considered as irresponsible. We oppose this evaluation as we consider that the CPA authority's finding has done the violation during the evaluation of the tender, as we in the agreement we have with X-Media which represents the newspaper BOTA SOT, where this can be confirmed on page no.2 of the Gazette, the review panel qualifies as ungrounded, because the complaining EO in this procurement activity did not tender as a group of economic operators, and also in the bid did not specify that the company presented in the agreement including here the newspaper Bota Sot has as a subcontractor as it is foreseen in article 30 of the LPP. Based on what was said above, the review panel evaluates that this agreement has no legal effect and is not an agreement with the gazette Bota Sot but is a deal with another company N.SH.X. Media with residence in Prishtina. Review panel after reviewing the memos of the case, the tender dossier, ascertainments mentioned in the expertise of the review expert, reviewing the complaining claims of the complaining economic operator, memo of the complaining EO dated 26 of July 2017, the memo of the contracting authority dated 26 of July 2017, clarifications given by the review expert during the hearing session, ascertained that contracting authority on the cancellation of the procurement activity with the title Publication of notices in the newspaper for the needs of independent agencies, with procurement no.aqp / 17/036/236, has respected the provisions of the LPP. Review panel conform article 117 of the LPP, and based on 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. Nuhi PAÇARIZI Decision to be submitted to: 1x1 exemplar - EO- Shpërndarje Express sh.p.k Prishtina 1x1 exemplar CA Central Procurement Agency (CPA) 1x1 exemplar - Archive of the PRB 1x1 exemplar - For publication on the website of the PRB.