PROCUREMENT REVIEW PANEL

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1 P.SH 307/17 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. Goran Milenković - President, Mr. Nuhi Paçarizi referent, Mr. Blerim Dina - member, deciding on the complaint lodged by the economic operator Kosova Asfalt Sh.p.k - Ferizaj, against the contract award notice of the EO Jehona Sh.p.k Malisheva, regarding with the procurement activity with title Asphalting of the seven local roads (two year project) with procurement no. 644/17/2617/521, initiated by the Contracting authority (CA) Municipality of Vushtrri, on the has issued this: DECISION I. APPROVED, as grounded the complaint of the economic operator Kosova Asfalt Sh.p.k Ferizaj, regarding with the procurement activity with title Asphalting of the seven local roads (two year project) with procurement no. 644/17/2617/521, initiated by the Contracting authority / Municipality of Vushtrri. II. CANCELLED, the notification for contract award of the CA/ Municipality of Vushtrri, regarding with the procurement activity Asphalting of the seven local roads (two year project) with procurement no. 644/17/2617/521 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 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 complaint of the complaining economic operator Kosova Asfalt Sh.p.k - Ferizaj, is 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 this procurement activity was done on the: The bid s opening was made on the: , with the participation of seven economic operators. The contract award notice regarding this procurement activity was done on the , where is recommended for contract the economic operator Jehona Sh.p.k - Malisheva. Against the notification for contract award regarding this procurement activity, economic operator Kosova Asfalt Sh.p.k - Ferizaj, on the , has submitted 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 Kosova Asfalt Sh.p.k - Ferizaj. Complaining economic operator Kosova Asfalt Sh.p.k - Ferizaj, as a dissatisfied party, has lodged a complaint at the PRB, on the 31 of August 2017 with protocol no. 307/17 against the notification for contract award, regarding the procurement activity Asphalting of the seven local roads (two year project) with procurement no. 644/17/2617/521, performed by the Contracting authority / Municipality of Vushtrri claiming that: Contracting authority has acted in violation of article 62 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. Review expert of the PRB in the report of the has ascertained that: Contracting authority during the conduct of this procurement activity has implemented an open procedure, contract for work, medium value, criterion for contract award has been: Responsive tender the lowest price. Dissatisfied with the notification for cancellation of the contract of the , for this procurement activity complaining EO Kosova Asfalt sh.p.k - Ferizaj initially filed a complaint at the contracting authority, and then filing a complaint also in PRB on the , with an allegation that it was not respected: Article 7,60,62 of the LPP.In the interpretation of what was said above, we are explaining that we have reviewed and analyzed the memos of the case, namely the complaining EO has an complaining claim that concerns the validity of a private reference for similar work filed in the original dossier for this procurement activity from the complaining EO Kosova Asfalt shpk. Regarding the complaining claim regarding the reasoning of the elimination of the complaining EO Kosova Asfalt regarding the reference presented in the original dossier and the validity of this reference, the PRB expert has ascertained that in the tender dossier and the contract notice were requested to the requirements: technical and professional capacities point 9.1 & 9.2 (requirement no.1): references performing similar works as in titles of this activity during the last three years (at least two references) from the list of projects realized in the field of construction activities. Complaining EO Kosova Asphalt in the original dossier has provided four references for similar works by meeting more than the minimum required demand in the TDS. Therefore, the challenged reference by the Anti-Corruption Agency during the monitoring of this procurement activity, the review expert evaluates

3 that for this reference issued by EO BAGERI, who was contracted of this project with contracting authority MA of VITI, for the project Asphalting the road in Lubishte - Viti, in the amount of 122,527.50, Contracting authority Municipality of Vushtrri is obliged to verify the real situation since the reference was issued by EO Bageri as contractor whereas EO Kosova Asfalt as sub-contractor, where for the same reference complaining EO Kosova Asfalt claims that there are also bank transactions related to this project. Based on the factual situation we evaluate that according to the article 72 of the LPP as well article 59.2 of the LPP, CA Municipality of Vushtrri is obliged to verify the authenticity of this reference requesting additional information such as bank transactions in regarding the completion of the works and the company's worksheet related to this project, since EO Bageri as contractor of this project could after receiving the work of subcontracting EO Kosova Asfalt even though the same did not present in the contract related to CA MA of Viti during the implementation of this project. Contracting authority through written memo of the , has notified the Review Panel that it does not agree with the report 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, representative 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, cancellation notice of the 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 Mr. Krasniqi stated: We agree with the expertise's report of the review expert. I will present some oral and written evidence and evidence in the form of facts. I will explain in two chapters, the first chapter deals with the requirements and the evidence that were the condition for issuing this tender. We think that we have completed all the points and submitted all the required evidence in the TDS and focus on section 2 of the TDS, specifically article 9.1 and 9.2 where the CA has requested as a condition to submit evidence that EO should have at least two projects similar works carried out within Regarding this point we have submitted four projects. In this first part I did not wish to focus because this fact itself says we have submitted double of the required contracts. It means if we take as a non-valid reference to a contract, again with three contracts we have met the required condition at this point which I believe are valid because there are no objections to those three. The second part, the verbal evidence I have now physically delivered in writing, and I can introduce you to keep in mind. I take this opportunity to present also the CA and with regret say that this can be done earlier and not come to the degree to which it came. The second part I justify in three points, we are dealing with a reference of EO Kosova Asfalt, regarding a project realized in 2016 in MA of Viti. It is true that EO Bageri has signed a contract with MA of Viti regarding the asphalting of the road in the village of Lubishte at the time mentioned earlier. Meanwhile, following the conclusion of the contract due to the large volume of works that had the Bager of technical capacity and wishing to respect the dynamic plan for carrying out the works, has engaged Kosova Asfalt company. Kosova Asfalt has carried out the work in a timely and very high quality under the supervision of the staff of EO Bageri and the project was delivered to the municipality with our knowledge without any objection. In

4 the dossier I submitted, appears the contract of Bageri with the MA of Viti, the minutes that the municipality made and the facts as contracts between Bageri and Kosova Asfalt. Controversial reference issued by the Bageri for Kosova Asfalt for all the works he has performed. In addition to the reference, we also have a proof that all the works that Kosova Asfalt has done the payment from EO Bageri, you have a page from the bank where bank transactions are presented. The sentence by CA that the reference is false has insulted us so we want to clarify this. At point two there is the question why our company has engaged our company Bageri. In the dossier I submitted is the measure of that road where the whole project is about 86% new asphalt, with which Bageri does not possess the basis of asphalt and the volume of work that is paving asphalting and considering that we are dealing with two subjects with family ties very close, father and son, Bageri has engaged Kosova Asfalt and has carried out these works. We do not know otherwise how to prove that Kosova Asfalt has done the job for Bageri and we think it is in compliance with the economic and financial laws of the LPP. The reference in question is true and reflects in its content the reality. For this reason, I had completed my reasoning regarding the complaint, I just want to fulfill the reporting initially that we were declared the winner of this project on the , then on the we received notice from CA for annulment of this decision. In the reasoning was mentioned reference I call it controversial because it is real. Based on all of the above mentioned facts, we request from the PRB to examine physically submitted and verbally submitted evidence, and the case to return to re-evaluation and since we are announced once the winner again to be announced the winner of this project. Through these violations of the CA are violated three articles of PPRC article 7, article 60 regarding the award criteria, and especially article 62, which if respected there would not be the case up to this point. Otherwise, CA knows well the Kosova Asfalt Company, as we have previously done a job for this CA. During the presentation at the hearing session the representative of the CA Mr. Dallku stated: We as CA as we have mentioned the member of the review panel we have given in eight points our opinions through a letter that we have submitted to PRB and complaining EO. It is true that initially the CA has decided to recommend for contract Kosova Asfalt, based on the fulfillment of the criteria according to the evaluation of the CA as the responsive tender with the lowest price. Meanwhile, ACA according to duty has requested the subject in the monitoring and from their examination it has resulted that Kosova Asfalt in the tender dossier among others has submitted a contract and reference regarding the contract which do not know is the adequate term false or legitimate. In my opinion it is not false because the work really but is legitimate this will clarify later. According to the opinion given by CA MA of Vushtrri, after receiving information from MA Viti where EO Bageri has performed works as contractor, has undertaken actions in accordance with legal provisions. Concretely CA has estimated that under article 18 point 18.3 of OGPPR the contractor had the right to contract up to 40% of the total value of the contract, whereas the contractor contracted according to the data the entire value of the contract. Also the CA has learned from the data of CA that the sub-contractor in this case Kosova Asfalt was not a subcontractor declared on the occasion of the application for which it was a legal obligation. MA of Viti in response given to the CA has stated that Kosova Asfalt has not been a sub-contractor Bageri, which in this case is presented as a reference issuer for Kosova Asfalt. Consequently, based on the article 65 paragraph 4 point 4.12 of the LPP it is stated that EO has no right to participate in a procurement activity or in the execution of any public contract if such EO CA has provided incorrect statement or false. On this basis CA has taken into consideration the opinion of ACA and has decided to cancel the notification of the contract award and in the further

5 procedure as Kosova Asfalt has also because of this inaccurate document has decided that, as specified by the law to reward the second EO Jehona from Malisheva, although it had a fairly higher price than EO Kosova Asfalt. We propose the review panel to refuse the complaint of the complaining EO and to validate the decision of the CA considering that although Kosova Asfalt has fulfilled the requirements even without taking into account this reference, however as ascertained ACA and then also CA it is indisputably correct that the contractor Kosova Asfalt illegally carried out work for Bageri, whereas Bageri did not have the right to issue such reference to EO. It remains for the Panel to decide on this issue while we will respect the Panel's decision. During the presentation at the hearing session the representative of the review expert Mr. Fazliu stated: Initially I clarify that we are dealing with a complaining claim which relates to a controversial reference by CA based on the opinion of ACA. Regarding this reference, CA was obliged to certify the originality of the reference, and as far as it is issued with EO Bageri is an issue that does not refer to EO Kosova Asfalt. This is about whether it is legitimate for Bageri to contract an EO that has not presented in his dossier. As Kosova Asfalt had submitted a false reference that it was he who contacted the job with MA of Viti would be another matter. However this EO has provided evidence that it is subcontracted as a sub contractor of Bageri. Based on these data I have recommended that CA in accordance with article 59.5 and 72 of the LPP to certify the legality of this reference with accompanying documents such as bank transactions, worksheets etc. Regarding the statement of the CA that the reason for the elimination of the EO is the false declaration under Article 18 of the OGPP, in the concrete case CA could in no way prove that EO made a false statement after the reference was issued by Bageri. That article it may only be used in cases when EO bidders have provided false testimony, while EO presents evidence that proves otherwise. I stand by the report dated Member of the review panel Mr. Dina asked the representative of the CA whether you are aware in the tender dossier of MA Viti and Bageri, is it allowed sub-contracting. In response Mr. Dallku stated: We are unaware that in the dossier of MA of Viti whether it was allowed or not sub-contracting. But precisely this issue is regulated by law up to 40%, whereas in the case Bageri has subcontracted 100%. 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, declarations of the parties to the proceedings, discussing and screening the evidence as a whole during the hearing session of the main review clarifies that Complaining EO has a complaining claim regarding the validity of a private reference for similar work filed in the original dossier for this procurement activity from the complaining EO Kosova Asphalt ShPK. Regarding this reference, the review panel clarifies that in the tender dossier and contract notice to the technical and professional requirements point 9.1 & 9.2 (request no.1) are required: references to performing similar works as in the titles of this activity, during the last three years (at least two references) from the list of projects carried out in the field of construction activities. The review panel based on the available evidence finds that complaining EO Kosova Asfalt ShPK in the original dossier provided four references for similar work, fulfilling more than the required request minimum in the TDS. Regarding the contested reference from the Anti-Corruption Agency, which has monitored this procurement activity, emphasizing that EO Kosova Asfalt SHPK has presented a reference issued by EO

6 Bageri for the project Asphalting of the road in Lubishte-Viti, the contract value 122,527.50, while in the tender dossier was not declared as a member of the consortium or as a subcontractor EO Kosova Asfalti SHPK, the review panel clarifies that complaining EO Kosova Asfalt SHPK, review panel has presented evidence in related to this reference, provided bank transactions by NLB Bank that payments were made in connection with this project, the contract concluded between EO Bageri and EO Kosova Afalt Shpk dated: , reference dated: issued by EO Bageri for EO Kosova Asfalt Shpk, contract between EO Bageri and Municipality of Viti dated etc. Regarding the dilemmas of the Anti-Corruption Agency and the authenticity of the aforementioned reference, the contracting authority is obliged to request additional clarification in accordance with article 59.2 and 72 of the LPP, although without this reference the complaining economic operator has fulfilled the request in relation to the performance references similar jobs. The fact that the economic operator Kosova Asfalt SHPK has completed the request of the contracting authority in respect of similar projects even without this reference has also admitted the representative of the CA at the hearing session of the held in 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. Goran MILENKOVIĆ Decision to be submitted to: 1x1 CA Municipality of Vushtrri 1x1 EO Kosova Asfalt Sh.p.k Prishtina 1x1 Archive of the PRB 1x1 For publication on the website of the PRB.

PROCUREMENT REVIEW PANEL

P.SH 378/17 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