PROCUREMENT REVIEW PANEL

Transcription

1 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 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 Kag Asphalt sh.p.k Prizren & Powatec GMBH, where recommended for the contract award is economic operator Çlirimi Prizren, regarding with the procurement activity with title: Building the Olympic Swimming Pool in Prizren, with procurement no , initiated by the Contracting authority (CA) Municipality of Prizren, on the 01 of November 2017 has issued this: DECISION I. APPROVED, as grounded the complaint of the EO Kag Asphalt sh.p.k Prizren & Powatec GMBH, against the decision for contract award regarding with the procurement activity with title Building the Olympic Swimming Pool in Prizren, with procurement no , initiated by the Contracting authority (CA) Municipality of Prizren. II. CANCELLED, the contract award notice of the Contracting authority (CA) - Municipality of Prizren, regarding with the procurement activity with title Building the Olympic Swimming Pool in Prizren, 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 25.8 and 130 of the LPP, to take action against the Contracting Authority which are defined in the above mentioned articles of the LPP. V. Complaining economic operator Kag Asphalt sh.p.k Prizren & Powatec GMBH, conform article of the LPP, it is returned the insurance fee of the complaint. VI. Obliged complaining economic operator Kag Asphalt sh.p.k Prizren & Powatec GMBH that conform article 36 point 5 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 The contract notice related to this procurement activity was done on the: 24 of July The tender s opening for this procurement activity was done on the 28 of August Complaining EO was notified as eliminated bidder on the 27 of September Economic Operator Kag Asphalt sh.p.k Prizren & Powatec GMBH According to Article 108 / A of 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 Law no. 05 / L- 092 and Article 4 of the Rules for submitting a request for reviewing at the Contracting Authorities, submitting complaints to the PRB and the value of the fees of the complaints filed a request for reviewing of the decision at the contracting authority on the 29 of September 2017, whereas the decision regarding the review of this request by the CA was taken on the: 02 of October Complaining economic operator Kag Asphalt sh.p.k Prizren & Powatec GMBH as a dissatisfied party has lodged a complaint at the PRB, on the 09 of October 2017 with protocol no. 378/17, against the decision of the CA regarding the procurement activity Construction of the Olympic swimming pool in Prizren with procurement no.622 / 17/3318/511, initiated by the Contracting Authority (CA) KUR HIDROMORAVA claiming that contracting authority, regarding this procurement activity, has violated these provisions of the LPP: Article 1 of the LPP- Purpose of the law; Article 6 of the LPP - Economics and Efficiency; Article 7 of the LPP- Equality in Treatment / No Discrimination; Article 59 of the LPP- Examination, Evaluation and Comparison of Tenders; Article 60 of the LPP- Criteria for Contract Award; Article 61 of the LPP - Tenders not normally law; Article 68 of the LPP- Economic and financial condition Article 69 of the LPP- Technical and financial capacities Procurement Review Body, conform article 113 and 114 of the LPP on the 12 of October 2017 has authorized the review expert to review the validity of all complaining claims of the complaining party. Review expert of the PRB in the expertise's report dated 23 of October 2017 has ascertained as follows: - Similar Projects to the nature of the contract realized in the last three years (2014,2015 and 2016), certified by the EO, including project titles, number, date of contracting standard, value, minimum of all nature projects the contract must not be less than 6,000, A list of similar projects certified for the last three years by the EO (scanned from the original) for the electronic file, and a copy of the file in physical copies, evidenced by references which show the value of the works and their nature or minutes of the final acceptance of the works (copy).

3 The review expert after examining the bid of the EO recommended for contract clarifies that in his offer has offered the list of projects realized in the value of: 16,526,887.10, for which has attached the references. Construction of the road on the atmospheric collector of the river Prishtina in the neighborhood of Calabria: 847, Construction of the road Esat Mekuli: 86, Construction of Esat Mekuli Road: 1,942, Construction of a local road in Sylaj neighborhood: 61, Construction of the road in the village of Bardhosh: 57, Construction with concrete elements of local roads and sewerage in the Tusus neighborhood in Prizren: 267, Construction of the detention center Gjilan: 5,121, Construction of the residential building Gradina : 7,325, Construction of UPz facility: 654, Replacement of windows of technical school 11 Mars in Prizren: 54, Building the second floor in the mental health center: 87, Construction of the second floor in the mental health center: 8, Repair of utilization areas at the mental health center: 14, In addition to the above-mentioned contracts EO recommended for contract also has a contract for the construction of a swimming pool, which is connected with with Sejdi Rexhaj - Investor, for which there is reference also issued on the: The review expert first clarifies that CA on the occasion of the evaluation of the bids did not seek explanations from the EO recommended regarding the contracts and references submitted in the bid. Regarding the contract with the private investor that mainly challenges the complaining EO, the review expert clarifies that this contract is according to the request of the tender dossier but the fact that this contract is considered fictitious by the complaining EO should conform with article 72 of the LPP to be verified and at the same time the review expert, also based on other contracts submitted in the bid recommends the CA to verify according to the request of the tender dossier. At the end the review expert recommended to the review panel to approve the complaint of the economic operator Kag Asphalt sh.p.k Prizren & Powatec GMBH as grounded and procurement activity Building of the Olympic swimming Pool in Prizren with procurement no.622/17/3318/511, initiated by the Contracting Authority (CA) Municipality of Prizren is returned for re-evaluation. Complaining EO Kag Asphalt sh.p.k Prizren & Powatec GMBH, through memo of the informs the panel that they agree with the opinion of the review expert. Contracting authority Municipality of Prizren through memo dated: informs the PRB that they do not agree with the opinion of the expert. At the hearing session of the main review of the 01 of November 2017, were present members of the review panel, representative of the CA and representatives of the complaining EO. In this hearing session were reviewed the memos of the case by doing the 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

4 economic operators, the report of the PRB expert, the memo of the complaining EO and the memo of the CA. During the presentation at the hearing session, the representative of the complaining EO Kag Asphalt sh.p.k Prizren & Powatec GMBH, stated: We remain entirely by our complaining claims filed in the complaint. We also agree in principle with the opinion of the expert, except for the pool contract that has presented the winning EO which is not proven by bank transfers, and other submitted contracts do not meet the conditions required in the tender dossier, such as similar pool projects. CA in this procurement activity has recommended for contract the irresponsible EO, and this is in contrary of the LPP. EO recommended for contract did not meet the requirements regarding the financial and technical financial situation required by article 68 and 69 of LPP. All other points are mentioned in the complaint and therefore we request from the PRB to properly examine this complaint in order to prevent discrimination and favoring the companies that is made in this case. We request from the PRB to request clarification and to certify the contract that is related to private person Sejdi Rexhaj. For example, to request a bank transaction or a TAK certification for the aforementioned contract as we suspect this contract is fictitious. Therefore, we request that this procurement activity to be returned to reevaluation and oblige the CA to certify the dilemmas that we have raised and respect the provisions of the LPP. On the question of the review panel member addressed to the representative of the complaining EO before the winning company there are three other companies with a lower price than you and also accountable, have you disputed their offers or do you have any arguments that they are irresponsible and do you have a legal interest. Representative of the complaining economic operator stated: We did not know who are accountable in this case and we have opposed the bid of the EO recommended for contract which we consider to be irresponsible. On the question of the President of the Review Panel addressed to the representative of the complaining EO whether you had access to the bids of the other EOs in this activity. In response representative of the complaining EO stated: We have requested access only to the bid of the EO recommended for contract and in this offer we have had access. We did not request access to other offers. In the continuation of the hearing session the speech was given to the representative of CA, MA Prizren who stated: in fiscal year 2017 and the following two years has planned to build an Olympic swimming pool, as the first project in Kosova, but also of a special importance for the city of Prizren and beyond. 11 EO have been accepted and the main focus of the CA during the preparation of the terms of the tender dossier and the criteria for contract award are to be less discriminatory for the local EO as we are aware that in Kosova are not built this kind of public facilities. We have the construction of private pools that have performed different EOs and we have been of the opinion that if it is proved with the documentation that we have requested in the tender dossier, as references to be accepted also these types of references issued by the owners of these swimming pools built in Kosova. An EO during the bidding process is consulted by phone that whether we accept references issued for private pools if they are documented with the documents-the documentation required in the tender dossier. It is not this EO recommended for contract but another EO participant in the tender. My answer has been

5 short, yes, we accept such references. Economic Operator Çlirimi in the tendering process for this project among some references evidenced by contract and technical acceptance as we requested in the file, has also offered a contract with a reference and with a proof that the owner of the pool Sejdi Rexhaj, has a contract with Çlirimi, has completed a pool in 2014, and is satisfied with the works that have been carried out by this EO. We have requested banking transactions to certify the financial economic situation of the EOs, not the technical professional situation in which our decision was attacked. Required Evidence list of similar projects certified for the last three years by EO (expired from original for electronic file) and copies for copies in physical copies, evidenced by references that show the value of works and their nature, or record of the final acceptance of the works (copy). CA in the evaluation process has decided to accept these evidences as good by the EO recommended for contract that by the evaluation commission have been sufficient that this EO to be declared accountable in all requests that were part of the tender dossier. After receiving the expertise and contesting the reference for the above pool, and in order not to delay further this process, we have requested in writing from EO Çlirimi to provide us with additional evidence regarding this pool, evidence that EO has provided and if the panel agrees I can offer you as additional evidence. Here is the statement of the pool owner and statement of the EO Çlirimi. For proof of technical and professional capacity once again emphasize no turnover or bank transaction required so EO was not obliged to bring such evidence. We propose to the panel to validate as grounded the decision of the CA. During the presentation at the hearing session the review expert stated: complaining EO in the submitted complaint did not fully prove legal interest, for the fact that did not oppose the other accountable EO, but regarding the complaining claim regarding the contract submitted in the bid of EO recommended for contract that is with a private EO, for this point I have requested the verification of this contract, which upon request is in harmony with the request of the dossier, but the fact that it is with the private operator was the reason of my request for verification. During the presentation at the hearing session representative of the EO Çlirimi stated: The swimming pool which is contested is located in Korisha and is located beside the road and it can still be confirmed today through its owner. For this there are also bank statements. We are the winner in this procurement activity for the fact that we were the EO with cheapest price also the main criterion for contract award was the lowest price that was respected by CA. We have also completed the entire tender dossier request. We oppose the expertise of the review expert as incomplete and not professional because it was not reviewed in the dossier of the EO that made a complaint whether it has a material interest as previously mentioned the chairperson of the panel for the complaining EO. This is because complaining EO did not deal with any other company that was cheaper than the complaining EO with the price. Another fact that this complaining EO does not meet the conditions and is irresponsible is that his collaborator in the consortium - German firm does not have the documentation in the allowed language in Kosova. We propose to the panel to validate the decision of the CA for contract award since we are also accountable EO with the lowest price. In the final words the representative of the complaining EO stated: We oppose the allegation of CA, saying that no bank transactions are required when it is known that the dossier was prepared based on the LPP. We recommend the review panel to approve our complaint and the case returns for re-evaluation.

6 Review panel after reviewing the memos of the case, complaining claims, expertise's report, the statement of the parties at the hearing session as well as all the evidence provided by the parties ascertain that contracting authority is obliged that, in accordance with article 72 of the LPP, regarding the complaining claim of the complaining EO should be requested additional clarification and to prove the contract concluded between the economic operator Çlirimi and private person Mr. Sejdi Rexhaj, with title the construction of a swimming pool consisting of two pools for adults and children in the amount of 1, 942, euro. The review panel concludes that this procurement activity should be returned for reevaluation and during the re-evaluation it is obliged the contracting authority to request additional clarification under article 59.2 and 72 of the LPP in respect of the aforementioned contract, since the representative of the economic operator recommended for contract the Çlirimi at the hearing session claimed that they have bank transactions (proofs) related to this project. Therefore this issue should be clarified and verified by the contracting authority. Review panel ascertained 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. Goran Milenković Decision to be submitted to: 1x1 CA 1x1 Complaining EO 1x1 Archive of the PRB 1x1 For publication on the website of the PRB.