PROCUREMENT REVIEW PANEL

Transcription

1 P.SH 294/16 297/16 PROCUREMENT REVIEW PANEL, appointed by the President, Pursuant to the article 105 and article 106 of the Law on Public Procurement of the Republic of Kosova no. 04/L-042, consisting of: Mr. Blerim Dina President, Mr. Ekrem Salihureferent and Mr. Tefik Sylejmani member, Mr. Nuhi Paçarizi member and Mr. Goran Milenković member, deciding on the complaint lodged from complaining EO Katana no.294/16 as well complaining EO Sodex with no.297/16, regarding with the procurement activity Supply with bulletproof vest with procurement no.214/16/134/111, initiated by the Contracting authority (CA) Kosova Police, on the hearing session held on the 25 of October 2016, has issued this: DECISION I. APPROVED as partly grounded the complaints of the EO Katana with no.294/16, and EO Sodex with no.297/16, regarding with the procurement activity with title Supply with bulletproof vest with procurement no.214/16/134/111, initiated by the Contracting authority (CA) Kosova Police. II. III. CANCELLED, as ungrounded the decision of the CA / Kosova Police, in regard with the procurement activity Supply with bulletproof vest with procurement no.214/16/134/111, and the case returns for re-evaluation, conform article 72 of the LPP. 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. V. Complaining economic operator Katana and Sodex with no.297/16, conform article of the LPP, it is returned the insurance fee of the complaint in the value deposited.

2 REASONING Economic operator Katana with no.294/16, as a dissatisfied party has lodged a complaint in the PRB, on the 02 of September 2016 with no. 294/16, against the notification for contract award entitled Supply with bulletproof vest with procurement no.214/16/134/111, claiming that contracting authority has violated essential provisions of the LPP. 04/L-042 supplemented and amended by Law 04/L-237, supplemented and amended by Law 05/L-068, supplemented and amended by Law 05/L-092, such as: Article 64 Evidence of requirements Article 66 Professional suitability Article 67 Written evidence Article 69 Technical and/or professional capacity Article 71 Groups of economic operators and foreign economic operator Economic operator Sodex with no.297/16 - Peja, as a dissatisfied party has lodged a complaint in the PRB, on the 05 of September 2016 with no. 297/16, against the notification for contract award entitled Supply with bulletproof vest with procurement no.214/16/134/111, claiming that contracting authority has violated essential provisions of the LPP. 04/L-042 supplemented and amended by Law 04/L-237, supplemented and amended by Law 05/L-068, supplemented and amended by Law 05/L-092, such as: Article 7 Equality in Treatment/No discrimination Article 10 Means to promote transparency Article 54 Notification of candidates and eliminated bidder Article 59 Examination, evaluation and comparison of the bidders Procurement Review Body after receiving the complaint, under article 113 of the LPP has authorized the PRB expert to review the validity of all complaining claims of the complaining parties. Review expert in his report initially has explained that after analyzing the documentation of this procurement activity, has explained that CA namely the evaluation commission didn t do the evaluation of the bids entirely according to the requirements of the tender dossier and the mandatory technical specification required from CA- Kosova Police. Following the review expert explained that CA at point 3 of the technical professional criteria has requested the samples of the product which requires CA. Regarding this request CA in the tender dossier has explained that: CA has the right to test the sample of the bulletproof vest to confirm if are produced according to the testing report (attests) in the TD. Also CA during the stage of additional explanation with EO, regarding with the technical specification at the bulletproof vest, stated that For the contracting authority will be acceptable all bids that fulfill the required protection NIJ-IV, according to the TD or their equivalence which may be specified according to the European standard CEN, German DIN, NATO AEP -55 STANAG Except ceramic tiles and UHMËP, it may be provided tiles as SAPI, ESAPI from materials Boron Carbide, Silicon Carbide ceramic and other types that may provide protection required according to the TD.

3 Review expert also has explained that according to the report of the evaluation commission, evaluation commission has given explanation regarding the samples submitted from EO, in which is stated: Samples will be tested by the Contracting authority at the moment of acceptance of purchase orders. So the review expert explains that according to the evaluation commission samples were not examined. At the end review expert following explains that complaining claims of the complaining EO mainly are dealing with technical specification of the product required. Also the review expert based also in the explanation given during the stage of questioninganswering and also the importance of the purpose of the bulletproof vest, explained that samples submitted by EO, initially must be submitted in the laboratory for examination in order to verify the technical specification required from CA- Kosova Police, then to be recommended for contract the economic operator who has fulfilled technical specification of the product required. Therefore review expert, has ascertained that CA, did not act conform article 59.4 of the LPP for the fact that Contracting authority must consider a bid responsive, only the bid which is in full compliance with the requirements of the tender dossier and contract notice. Review expert based in the data above has proposed the review panel that this procurement activity to return for re-evaluation and at the same time has recommended CA, that re-evaluation of the bids to be made in full accordance with requirements of the tender dossier and mandatory technical specification. Complaining EO Katana Prishtina in the memo of the has declared that agree with opinion and recommendation of the review expert. Complaining EO Sodex Prishtina although was notified with expertise s report didn t respond regarding with the expert s report. Ca on the through memo has notified the PRB, that doesn t agree with report and findings of the review expert for the procurement activity. In the hearing session of the main review of the 25 of October 2016, were present members of the review panel, PRB expert, representative of the CA, representative of the complaining EO. In this hearing session were reviewed the case files by doing the checking and analyzing of the documentation for the procurement procedure which consists of: authorization of the initiation of the procurement activity, contract notice, record on the bid s opening, decision on the establishment of the evaluation commission of the bids, evaluation report of the bids, contract award notice, complaint of the economic operator, PRB expert s report, memo of the complaining EO and memo of the CA. During the presentation of the hearing session representative of the EO Katana stated: We submitted and the request for reviewing initially at the CA, then in the PRB for complaining claims that are mentioned in our complaint and expertise. Despite the fact that we are a bid with more expensive price we are interested party in this procedure as according to our opinion and that what was filed in the complaint, two other EO bidders, are irresponsible because of the violation of the article 64, 67, 69, 71 of the LPP, because in the dossier of the winning consortium document that are filed Seyntex are invalid and are not valid as certification of the products, whereas some other documents are with expired deadline certificate of TAK, country of origin and relevant Judges are of the month of February whereas their validity is three months, which means are with expired deadline. Regarding with technical professional capacity, according to LPP and dossier is required evidence for completed projects the acceptance sheet or reference from receiver of the

4 goods or services, whereas in the dossier of the winning EO are documents issued by members of the consortium Syentex which is also the producer of the products. Regarding with decision to announce responsive EO Sodex the tender of this EO in the description of the products have presented inaccurate data and are not as required in the dossier, since in the products offered in the statement of the bidder are not in accordance with data in the catalogue brochure of the producer of the products. Also the tender of the EO Sodex does not contain relevant certificates that are required in the tender dossier, as are certificate and relevant tests for verification of the scale of the ballistic protection 3A level NIJ4. The dossier contains some documents which present the procedure of testing, but does not have certificate that certify the practicability of those tests. Beside this expert has noticed that CA, did not verify the compliance of samples and according to our opinion are not in accordance with required specifications. During the presentation in the hearing session representative of the EO Sodex stated: As you are informed we have file a complaint where are obvious clearly our complaining claims for violation made by the CA. We are announced responsive as EO by the CA, and at the same time claim that EO recommended for contract is irresponsible EO, and for this in our complaint we have submitted our complaining claims with facts where are certified with our complaining claims. We have analyzed the expert s report and agree partly with his opinion, however in the expert s report were not elaborated all our complaining claims, therefore we request from this review panel to review and take the decision for all our complaining claims. At the same time is mentioned of all complaining claims of the EO Katana for the tender submitted by us are unsustainable below with the facts to be denied these complaining claims. We have represented the points of the complaint and at the same time these points were not addressed by the expert. EO recommended for contract in his dossier does not have the statement for technical specification for the goods offered which are not in accordance with those claims in the annex 1 of the tender dossier, as required in the TDS article 3.1 point A. Also EO recommended in the catalogue submitted misses technical specification basis as: the model with which article provided, weight of the tiles provided, the weight of the bulletproof of the vest with ballistic, information on the size of the vest, all these required in the annex 1 of the dossier. Other deficiencies we have mentioned in our complaint submitted to the PRB. During the presentation in the hearing session representative of the CA stated: Commission of the CA has done the evaluation conform authorization, within timeframes. I will not stop at specific points of the complaining claims but as authorized we remain by the decision of the evaluation commission of the CA and the decision of the CA for contract notice, after recommendation for contract award is made according to the criteria for cheaper price, as all EO have fulfilled the criteria from CA. We do not know whether saw the expert in the part of the contract where CA, holds the right to test the sample of bulletproof to certify that are produced according requests of the CA. Commission had authority and possibility to make the testing in each stage of the evaluation, and is evaluated that the testing of the product to be made in the final stage when the company selected makes the supply and is made the testing. This is done with purpose is it is tested the sample it is damaged-destroyed. Also there are cases when EO does not provide product that has offered in the bid, therefore in the supply will be the

5 testing of the product that in fact it is supplied winning EO at the CA. I think this element had the need for explanation for the review panel. During the presentation in the hearing session representative of the EO recommended for contract All Zone stated: We disagree with the opinion of the expert for re-evaluation as we evaluated that CA has evaluated justly the time when it is done the testing and are provided all attests that reflect all necessary for evaluation. Following President of the panel gave the speech to the review expert Mr. Basha who stated: After analyzing the case files, ascertained that CA has not completed entirely the evaluation of the bids, for the fact that are not examined samples that CA has requested to be submitted from EO on the occasion of bidding. CA is obliged according to article 59 to consider responsive only that bid that is in compliance with the requirements of the tender dossier and contract notice. Regarding with the statements of the representative of the EO, here at the hearing session regarding with the data by me concerning the complaining claims, highlighted that their samples are not submitted in the PRB and that the PRB it is not competent for evaluation of the samples but it is a Forensics Agency. Based on these data I have recommended that this procurement activity to be re-evaluated entirely again. In the final speech representative of the EO Katana stated: We propose the review panel to approve our complaint as grounded and the case to return for re-evaluation, considering all our complaining claims and to make the testing of the samples provided by the EO. In the final speech representative of the EO Sodex stated: We stand by our complaint and complaining claims and I recommend the panel to approve our complaint ass grounded. Regarding attests, attests provided from winning EO they do not comply at all with product provided or with material provided in the final product for this procurement activity. In the end the representative of the CA stated: We stand by our decision of the CA and propose the review panel to certify the same as grounded. Kosova Police needs to complete this process as soon as possible since our organization needs this product for which is being developed this procurement activity. At the same time we propose the panel to refuse the complaints of the complaining EO as ungrounded. At the end review expert stated: I remain entirely at the expertise s report and recommendation of the given in the expertise. Review panel after reviewing the case files, evaluation report of the evaluation of the evaluation commission of the CA, reviewing the complaining claims of the complainant and recommendation of the review expert mentioned in the report, discussion and screening of the evidence entirely during the hearing session of the main review, ascertains that examination, evaluation and comparison of the bids it is not done accordance with article 59 of the LPP, therefore is obliged Contracting authority that conform article 72 of the LPP to request explanation for all requirements regarding the certificates required and laboratory testing reports for all ingredients of the bulletproof vest, and to make the examination of samples submitted for the purpose of examination, evaluation and comparison of the bids to be made by treating all bidders equally conform article 7 of the LPP.

6 Review panel, based on article 117 of the LPP, and with that what was said 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- Kosova Police 1x1 EO Katana and EO Sodex 1x1 Archive of the PRB 1x1 For publication on the website of the PRB.