PROCUREMENT REVIEW PANEL

Transcription

1 P.SH 199/17 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, deciding on the complaint lodged by the economic operator Euro Printy Sh.p.k - Prishtina, against the notification for contract award of the EO N.t.p Ink Station - Ferizaj, regarding with procurement activity with title Supply with toner for the needs of MH with procurement no.206/17/013/121, initiated by the CA- Ministry of Health, on the has issued this: DECISION I. Approved, as partly grounded the complaint of the economic operator Euro Printy Sh.p.k - Prishtina, regarding with procurement activity Supply with toner for the needs of MH with procurement no.206/17/013/121, initiated by the CA- Ministry of Health. II. Cancelled, the decision for contract award of the CA- Ministry of Health, regarding with the procurement activity Supply with toner for the needs of MH with procurement no.206/17/013/121, and the case is returned for 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, to take action against the contracting authority. V. Since the complaint of the Complaining economic operator Euro Printy Sh.p.k - 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.

2 REASONING Contract Notice regarding this procurement activity was done on the: The bid s opening was done on the 25th of May 2017, with the participation of five economic operators. The standard letter for unsuccessful EO was sent on the: Notification for contract award regarding this procurement activity was done on the: , where is recommended for contract economic operator N. t. P Ink Station - Ferizaj. Against the notification for contract award regarding this procurement activity, economic operator Euro Printy Sh. p. k - Prishtina on the 19th of June 2017, has made a request for reviewing at the contracting authority. On the , the contracting authority has taken the decision to refuse the request for reviewing of the economic operator, Euro Printy Sh.p. k - Prishtina. Complaining economic operator Euro Printy Sh.p.k - Prishtina, as a dissatisfied party has lodged a complaint at the PRB, on the 27 of June 2017 with protocol no. 199/17, against the notification for contract award, regarding the procurement activity Supply with toners for the needs of MH, with procurement no. 206/17/013/121, developed by the contracting authority Ministry of Health claiming that contracting authority regarding this procurement activity has violated these provisions of the LPP: - Article 7 of the LPP- Equality in Treatment / Non-Discrimination; - Article 41 of the LPP - Notification of Contract Award; - Article 42 of the LPP - Publication of notification - Article 54 of the LPP - Notification of Eliminated Candidates and bidders; - Article 60 of the LPP- Criteria for Contract Award; - Article 66 of the PPL - Professional Suitability; - Article 67 of the LPP- Written evidence 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 in the report of the ascertained that having based the complaining claims of the complaining EO Euro Printy and the requirements set out in the tender dossier has analyzed and addressed the bid of the complaining EO as well as the bid of the EO Recommended for contract and based on the provided evidence no one meets the qualification criteria related to professional technical capacity, concretely does not meet the original Authorization request and does not provide the evidence provided for the ISO standard in accordance with the requirements set out in the tender dossier for the reason that: The economic operator recommended for contract offers a document which neither in form nor content does not meet the requirements for the Manufacturer Authorization Form, even for a request filed in the Tender dossier economic operators have asked questions as well have requested the CA to remove such a request because competition may be restricted because there are fewer bidders who can fulfill one as we are dealing with a different kind of toner. Different types are required in the tender

3 dossier, which means that it is a different manufacturer starting with HP, Canon, Lexmark, Dell Samsung, Epson, etc. and based on the variety of toners it is impossible for an EO to have this authorization for all types of toners, even if it were, it would be considered unreasonable that the market might be monopolized or simply be abused with the dominant position in the market. EO recommended for contract provides some evidence that certain companies are certified with ISO standards required, but it is unclear the connection of those companies with the company that has authorized EO INK station for supply. As an example, we refer to EO INK Station which is authorized by Ninster Image Tech Limits and with ISO standard is certified Apex Tehnologi Co in China and it is not known which types of toners are certified. Also, the requirements of Article 69 of the LPP on the technical and professional possibilities does not meet even the complaining economic operator as it does not provide data proving that the Original Authorization by the Manufacturer has been fulfilled because it offers a document called a certificate which alsoby form and by content does not meet the requirements related to the authorization (MAF). Both economic operators as the complainant and the one recommended for contract offer some evidence from the Chinese firm that they are allegedly certified with the required ISO standards and only if we consider the variety of toners then it is clearly seen that neither and the other do meet a requirement of such as the authorization by the manufacturer is issued by the producer itself but not by the mediator as the original authorization request relates to copyright or property rights. Therefore, CA in the dossier has filed several qualifying requests under article 69 of the LPP which were not fulfilled by the EO participant since the manner of submitting the requests disables the CA to make an unfair evaluation of the bids and not in accordance with the requirements set forth and this has resulted in violation of article 7 Equality in Treatment, Article 51 Notification of Selection Criteria article 52 Notification of Evaluation Criteria and Article 59 Bid s Evaluation. Review expert evaluates that the complaining claims are stable and recommends the contracting authority to cancel the procurement activity for the fact that neither EO recommended nor complaining EO do meet the criteria set out in the dossier and the contract notice, and also recommends CA that the qualifying requirements are in conformity with the nature of the procurement. Complaining economic operator on the , by memo, has notified the PRB that agrees with the opinion of the review expert. Contracting authority through written memo dated: , has notified the Review Panel that 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, Observer from NGO "D Plus", reviewed the case files 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 the bid s evaluation commission, bid s evaluation report, Notification on 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 Ms. Gashi stated: We remain entirely with the complaint and complaining claims,

4 and we consider that the expert has treated all the points of complaint and that we have agreed with the expertise in the case in question, we still do not know why we were eliminated from this procurement activity as we did not receive any kind of information like standard letter or any or any other means of information, and this was one of the reasons why we have also complained of some other reasons. During the presentation at the hearing session representative of the CA Mr. Bajraktari stated: We do not agree with the expertise in the points that he has mentioned here and regarding the EO who said we did not receive information by or something else as CA we have informed by e-procurement on the 13th of June 2017, whereas with regard to access request on the we did not give access reasonably that we were in the process of evaluation, whereas regarding the expertise the first point of the EO recommended for contract offers a documentation which either in form or content does not meet the requirements related to the criteria for original authorizations by the manufacturer even for a local request in the tender dossier EO have asked questions and requested from the CA to remove such a request: 1. The authorization issued by Inngstation is clearly defined that Ninestar manufactures toners for many types of printers such as HP, Samung, Dell, etc. This is why it does not concern the monopoly market because there are many factories that produce different types of toner. Point number 2 where the expert stated, told EO recommended for contract offers some certain evidences as CA we do not agree and we also inform you that NineStar company is the largest producer of toners in the world where this company also includes many other companies such as Appex, Teknology which is responsible for the chips, during the control or evaluation provided on their website you can clearly see the connection between APPEX NINESTAR and GG. It means is the same connectivity. Reason for elimination of the complaining EO: this EO did not meet the request ISO CERTIFICATE 1901 of 2015 which this EO has not proved to have. The other elimination point is to prove that the manufacturer is ISO certified as well as ISO 1975 that must have the product which the complaining EO has not provided as evidence. During the presentation in the hearing session review expert of PRB Mr. Sheqiri stated: I stand by the expertise and I think it has been quite clear, it is true that they have requested authorization from the manufacturer which means that in their offer no EO provides original evidence neither the winner nor the complainant, and the EO recommended for the contract contains an authorization from EO NINESTAR but NINSTAR itself is not ISO-certified and 1975, so if it declares that it is a manufacturer then it must be certified with ISO standard. The EO recommended is true that it offers ISO standards and 1975 but on behalf of other EOs such as Apex and GG, for this it is unclear to me as an expert, where is the role of these two manufacturers even on the offer there is no offer or cooperation agreement, and my reason for canceling is by the very fact that we are dealing with a number of different types of toners and if we take the basis or fact that an EO to be accountable, it must bring original authorizations from each producer, which in the concrete case has not happened. I emphasize a fact that has stated CA that neither complaining EO does not meet the conditions for tender dossier. In the final words the representative of the complaining EO stated: I request the CA to correct some criteria and the case to return for re-evaluation.

5 In the final words, the representative of the CA stated: I do not agree with the expert who said that there is no affiliation if he enters the website and sees that they have links. I propose to remain the decision of the CA and to reject the complaint of the complaining EO. In the final words, the PRB review expert stated: I remain by the expertise of the date: Review panel after analyzing and reviewing the evidence and facts presented by the parties during the procedure, statements in the hearing session of the main review and all the presented evidence, ascertain that CA-MH has conducted this procurement activity in contradiction with the provisions of the LPP, because it did not respect article 51 of the LPP- Notification of Selection Criteria, for the fact that it was ascertained that EO recommended for contract based on the evidence provided does not meet qualifying criteria related to professional technical skills, concretely does not meet the Request for Original Authorization and did not provide the evidence for ISO Standard in accordance with the requirements set out in the tender dossier because it did not provide a document which either in form or content does not meet the requirements related to the criterion for the Authorization Form (Manufacturer Authorization Form). Review panel ascertained that contracting authority when it established the request for Original Authorization of the Producer for toners has limited the competition, as there are fewer bidders who may be able to meet such a request. On demand there are different toner manufacturers such as HP, Canon, Lexmark, Dell Samsung, Epson, etc. and based on the variety of toners it is impossible for an EO to have authorization for all kinds of toners. The review panel concluded that even if it were possible to provide authorization for all types of toners, then we would have to deal with a monopolized market and a dominant position in the market. Also, the review panel has ascertained that also complaining EO was not accountable since the same did not meet the requirements of article 69 of the LPP on technical and professional possibilities because it did not provide data that can be proved the Original Authorization from the Manufacturer because it offers a document called a certificate which also neither in form nor content does not meet the requirements for authorization (MAF). The review panel has ascertained that CA has decided the qualifying requests in contradiction with the article 69 of the LPP that were not fulfilled by the EO participant since the manner of submitting the requests made it impossible for the CA to make a nonfair evaluation of the bids and not in accordance with the submitted requirements, thus resulting in violation of Article 7 - Equality in Treatment / Non-Discrimination, Article 51 - Notification of Selection Criteria, Article 52 - Notification of Assessment Criteria, and Article 59 - Examination, Evaluation and Comparison of Tenders. Review panel conform article 117 of the LPP, and based on the evidence presented above decided as in the provision of this decision.

6 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- Ministry of Health 1x1 EO Euro Printy Shpk - Prishtina 1x1 Archive of the PRB 1x1 For publication on the website of the PRB.