P.SH 264/17 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. Nuhi Paçarizi President. Mr. Blerim Dina referent, Mr. Goran Milenković member, deciding on the complaint lodged by the economic operator NTG BLENDI Prishtina, against the notification for cancellation of the contract award and against cancellation of the procurement activity with title Electoral form with procurement no. 320/17/009/111, initiated by the CA / Secretariat of the Central Election Commission, on the 23.08.2017 has issued this: DECISION I. Approved, as partly grounded the complaint of the economic operator NTG BLENDI Prishtina, regarding with procurement procedure with title Electoral form with procurement no. 320/17/009/111, initiated by the CA / Secretariat of the Central Election Commission. II. Certified, the notification of the CA Secretariat of the Central Election Commission, for the cancellation of the procurement activity with title Electoral form with procurement no. 320/17/009/111, whereas if further has interest for this procurement activity CA, can re-tender. 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 23.9 and 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 complaint of the complaining economic operator NTG BLENDI Prishtina, is approved as partly grounded, it is returned the insurance fee of the complaint in the amount deposited when filing the 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.
REASONING Contract Notice regarding this procurement activity was done on the 04.05.2017. The bidding was made on the: 19.06.2017, where four economic operators participated. Standard letter for the unsuccessful economic operator from the contracting authority was sent on the: 06.05.2017. The notice for cancellation of contract award by the Contracting Authority regarding this procurement activity was done on the 25.07.2017. Against the notification for cancellation of contract award regarding this procurement activity, economic operator NTG BLENDI - Prishtina on the 28.07.2017 has made a request for reviewing at the contracting authority. Complaining economic operator NTG BLENDI - Prishtina, as a dissatisfied party, has lodged a complaint at the PRB, on the 09 of June 2017 with protocol no. 264/17 against the notification for cancellation of contract award, regarding the procurement activity with the title: Electoral form, with procurement number 320/17/009/111, developed by the contracting authority- Secretariat of the Central Election Commission, claiming that contracting authority, regarding this procurement activity, has violated these provisions of the LPP. The contracting authority has acted in violation of articles 1, 7, 56, 59 and 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 10.08.2017 has authorized the external professional the review expert, to review the validity of all complaining claims of the complaining party. External professional review expert in the report dated: 16.08.2017 has ascertained that: Concerning the examination of the documentation we have identified 2 controversial situations regarding the cancellation of this tender at the final stage prior to the signing of the contract. The first, canceling the tender published for giving the justification that there were omission in the technical specification has encouraged the party to request for another review of the process, in addition to the suspicion that there is something that does not convince in this annulment. Second, it concerns the fact that the cancellation has occurred after the withdrawal of the provisional winner, who in a short writing without much explanation, on the 21.07.2017 informs the CA that he withdraws from the tender after short writing, where justified that it was not clear that some of his prices were low and that he would not be able to fulfill the contract under these conditions. Further, as noted in the memos, CA does not make so big the issue of withdrawal of the winner at this stage, but chooses to cancel the Contract award Notice 4 days after the receipt of the memo for withdrawal on the 25.07.2017. In this context, we conclude that the key point is the phase (time) when the notification for cancellation, it is not surprising or not legal to cancel a tender at the assessment stage or even before signing the contract if it can be argued. It is evident that the ommission in the technical specification, namely the Tender Dossier, whenever
ascertained, represent impassable obstacles to guide the process at the further stages of signing and implementation of the contract, if they cannot be regulated by a clarification procedure, however if you refer to case files, we note that this cancellation has some suspicions for the causes of the cancellation. First of all, the source of the problem lies in the decision of the winning EO to withdraw and the unconvincing reasons for not signing the contract. In cases when the operator withdraws after selection the only defense mechanism of the CA is Tender security, which CA did not request at all in the dossier, not having legal protection of the procurement activity at the moment of withdrawal of the operator. Therefore the evaluation of the review expert is that without having the proper protection, the CA takes the decision on cancellation with the reasons for the errors in technical specifications for some items. The question is how these mistakes were not previously noticed by the procurement officials or the commission until the announcement of the winner, ie shortly before the signing of the contract. Moreover, these concessions have not been identified by the tender participant, which could have affected the request for clarification that these uncertainties would be eliminated in time during the process. In the concrete case according to the case files we notice that the decision of the CA for annulment is brought under Article 108 / A of the LPP, point 10.2, which among other things stipulates that: The contracting authority may by a decision...10.2 to approve a written request as grounded and to partially or completely annul the approved decision. We are explaining that in this case the CA has mistaken the legal basis of the cancellation, because this reasoning is not related to the reasons for the cancellation of any tender, but it deals exclusively with the reviewing, respectively the approval or refusal of the request for reviewing addressed to the CA does not include other issues in this position. So the withdrawal from the tender was not a request for reviewing or complaint, but merely a pragmatic justification of withdrawal from the conclusion of a contract that it has committed to meet until it has changed its mind. Therefore we evaluate that CA was wrong with the cancellation of the award, failing to establish the true reason for the cancellation of the tender at the notification stage for the award. In fact, the reasons for canceling an activity at this sensitive stage can be justified by the provisions of Article 62 of the LPP, paragraph 1.1 where it is stated: A violation of the current law has occurred or will occur in the procurement procedure which does not can be regulated or prevented through a legal amendment to the procurement conditions, including where a provision of this law requires the cancellation of the procurement activity. However, as noted above, at this point CA did not provide any more detailed explanation of what aspects of the technical description of the mentioned positions there were uncertainties and inaccuracies, the identification of which would reinforce the decision for annulment. Therefore at this point we find that it is necessary for the CA to provide additional arguments regarding the reasons for the cancellation, which should provide in written in the forthcoming developments of the procedure or even in case of holding a hearing session with the review panel at the PRB. Therefore the review expert relying on the examination of the facts presented in the tender dossier, the course of evaluation and giving and cancellation of the contract award by the CA recommends that the complaint of the EO BLENDI from Prishtina be approved as grounded, annulling the preliminary decision of the CA for annulment and the case to be returned for re-evaluation, in order to reconfirm the real situation, through which it may be firstly reviewed where there were errors in the process and without any bias it is seen the possibility of awarding the tender to other responsible operators (here cannot be included the operator Grafo Loni who by his own will has withdrawn from the competition official letter). Or, on the contrary, if it is true that the technical specification
has been made with irreparable errors, then this is again to be concluded by a regular reevaluation procedure with the report by providing the detailed arguments for justification of the cancellation of the process pursuant to article 62 point 1.1 of LPP for the entirely objective reasons of the inability to implement the contract in practice. Ultimately for practical time saving purposes, as an alternative solution to the shortening of the procedure, we recommend the possibility to ask the CA to fully demonstrate the facts of the inaccuracies in the technical specification in order to convince the parties to the Review Panel of the PRB that this tender cannot go further without being canceled. Complaining economic operator on the 16.08.2017, by memo, has notified the PRB that agrees with the opinion of the review expert. Contracting authority through written memo dated 21.08.2017, 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 23.08.2017 where were present the review panel, representative of the contracting authority, representative of the complaining EO, external professional expert of the PRB, Observer from NGO D Plus were reviewed the memos of subject to 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 the bid s evaluation commission, bid s evaluation report, notification on cancellation of contract award, complaint of the economic operator, PRB expert s report,memos of the parties to the procedure. During the presentation at the hearing session representative of the complaining EO Mr. Rama stated: Regarding the expertise we agreed with the expert's findings and support the expertise. The CA's reasoning for annulment that allegedly some positions are not correctly defined, which would cause unreachable defects in the performance of the work of the CA, since the electoral process is sensitive, this is not the case because this has been confirmed even with the case of meeting CA convened by Mr. Haxhiu, in the presence of officials of Fatos Lika and Kushtrim Spahiu. In this meeting were presented the samples, and were offered the readiness and guarantee that EO Blendi has the technical and financial capacity to carry out the supply in accordance with the presented samples and there will be no obstacles to the implementation of this contract. Finally, we request from the PRB to approve our complaint, to take the decision on the cancellation of the notification for cancellation of the procurement activity, and CA for the tender Electoral form to return for re-evaluation, and re-evaluation to be made in accordance with the requirements and criteria set out in contract notice and tender dossier. During the presentation at the hearing session the representative of CA Mr. Haxhiu stated: We have expressed disagreement with the expertise's report because the evaluation commission has evaluated the offers and facts that the winning EO has been announced for contract award. After the announcement of the contract award notice, there was an error in the drafting of the specifications in 5 articles that read three thousand pieces, where inside there is no quantity, how many should have these forms within, and in these forms it is written how much grams the paper will be, decisively did not describe the items that should be and work during this activity. It is a fact that we summoned the winning EO and reported with the technical mistakes that have occurred in the design of the specifications and EO Grafo Loni has withdrawn by saying that I cannot stand by
the specified specifications with changes. It is a fact that we have also called the second EO in consultations after the withdrawal of the first EO. We talked, samples were presented to us, and given the lack of specifics that the quantity is not specified, we came to the conclusion that since it is not written we cannot implement this contract. For me though it is agreed verbally that can be done by EO, but the description of the quantity was not in specification and given that it is a large quantity, without being written I could not - did not have the confidence of that implementation will be realized upon our request in realization. According to the requesting unit unspecified definitions, and irreparable defects, we have come to the conclusion to cancel this procurement activity. During the presentation at the hearing session, external professional review expert Mr. Hoxha stated: This has been a quite complicated subject, not so much for actions but for procedures that have not been respected until the end. First, this was an open, nonnegotiated procedure, and according to article 7 of the LPP any communication with the participating parties should meet at least two conditions. One must necessarily be in writing and the second one will be notified simultaneously for all EOs, what will be undertaken in the procedure. The other side, which I think is key is the mistake in the technical specification. At any stage if it can convincingly prove that the specification has any omissions and errors for the most practical issues, the process should be canceled because the contract cannot be signed and cannot be implemented. I have asked for a reevaluation for two reasons. The first all EOs up to this three evaluated as accountable from the CA had to be treated equally even at the moment of notice of cancellation of the contract notice. Second, the moment that the letter came back from the temporary winner Grafo Loni is returned is improper not right time and not convincing. It was waited 7 or 8 days with the notice of giving and responded with a very faded letter saying that he withdraws from the process. The next issue is that CA here begins with some procedural mistakes, perhaps not intentional, but it should have been carefully taken care of not to come up with complaints. In conclusion, the problem is that even when they have given the justification that there are errors in technical specifications, according to the documents that I have seen did not provide any detail arguments, only there are errors in technical specifications. There is no more detailed description from CA, so in the absence of detailed reasoning I recommended re-evaluation. A large value contract with 180,000 euro, to be published without tender security is unusual, although legally permitted. Panel member Mr. Dina asked the representative of the CA for what reason EO Grafo Loni was withdrawn. In response Mr. Haxhiu stated: I read the complete reply of EO Grafo Loni, the same letter of reply of this EO I leave it as evidence in today's session for the review panel. The error has been in the drafting of technical specifications, where are not defined the specifics of the quantity of the form, since a form has 3000 copies, the position 90/201 formatting the data result matching, A3, 3000 pieces. This form within itself has also of 4 other copies. This also applies to positions 91, 92, 158/221, 154 etc.. In the final words, the representative of the EO Mr. Rama stated: These technical specifications that Mr. Haxhiu is mentioning, since in 2014 we compete at the CEC and with these technical specifications we have always competed. So we also propose to the panel that the case to return to re-evaluation.
In the final speech the representative of the CA Mr. Haxhiu stated: We stand by the decision of the CA and we propose to the panel to authenticate it as grounded. In the final words, the review expert Mr. Hoxha stated: I stand by the expertise's report and the findings and recommendations given in the expertise. Review panel, after reviewing the case files, reviewing the claiming points of the complainant, findings, concrete analysis and recommendations of the review expert, statement of the parties in the procedure, discussion and screening of the evidence entirely during the hearing session of the main review, ascertains that is ungrounded the reasoning of the CA that have made a mistake in drafting and defining the specifics in 5 items, since are not defined specifics in the quantity of forms, for example position 90/201 the matching form of the data of results A3, 3000 pieces. This form within itself has also of 4 other copies. So it is not included the quantity, how much should have these forms within. This is worth also for position 91- the matching form of the data results for municipality A3 3000, position 92- the matching form of results for candidate FRK A3 3000 pieces, position 24158/221 report of the CEC on the acceptance of the material A3 3500 pieces, position 20154 the matching form of the data for VPNV A3 in two and three language 250 piece. Review panel considering the omission and not clear defining of the CA mentioned above comes to conclusion that it is reasonable the reasoning of the Contracting authority that these omission will cause irreparable defects in completion of this contract since the electoral process is sensitive. Also the review panel ascertains that on the occasion of the cancellation of this procurement activity is acted in harmony with article 62 paragraph 1.1 of the LPP and article 44.7 point (ix) of the Rules and Operational Guidelines for Public Procurement (R OGPP). Review panel comes to conclusion that Contracting authority during the drafting and compiling of the technical specification has acted in opposition with article 28 paragraph 2 of the LPP, since these undefined specification cannot be reached the purpose of the procurement. Therefore, Review panel conform article 117 of the LPP, and based on 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. Nuhi PAÇARIZI Decision to be submitted to: 1x1 CA- Secretariat of the Central Election Commission 1x1 EO - NTG BLENDI - Prishtina 1x1 Archive of the PRB 1x1 For publication on the website of the PRB.