PROCUREMENT REVIEW PANEL

Transcription

1 P.SH 188/18 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, deciding on the complaint lodged by the Economic operator: N.T.P Vlora Prishtina, against the contract award notice, EO N.P.SH Star Graf Ferizaj, regarding with the procurement activity with title Office Supplies for the Institutions of the Municipality of Shtime', with procurement no.:617/18/1016/136, initiated by the Contracting authority (CA) MA of Shtime, on the has issued this: DECISION I. APPROVED, as partly grounded the complaint of the Economic operator: N.T.P Vlora Prishtina, regarding with the procurement activity with title Office Supplies for the Institutions of the Municipality of Shtime', with procurement no.:617/18/1016/136, initiated by the Contracting authority (CA) MA of Shtime. II. CANCELLED the contract award notice of the CA/ MA of Shtime, regarding with the procurement activity with title Office Supplies for the Institutions of the Municipality of Shtime', with procurement no.:617/18/1016/136, 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 EO N.T.P Vlora Prishtina, 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: Bid s opening was done on the: , where six (6) economic operators participated. Standard Letter to the Economic Operator: N.T.P Vlora Prishtina, as unsuccessful bidder from the Contracting Authority, was sent on the Contract award notice from the contracting authority was done on the Against the notification for contract award economic operators: N.T.P Vlora Prishtina, on the has made a request for reviewing at the contracting authority. On the , contracting authority has taken a decision and rejects the request for reviewing of the EO: N.T.P Vlora Prishtina. Complaining EO: N.T.P Vlora Prishtina, as a dissatisfied party, has lodged a complaint at the PRB, on the 04 of May 2018, with protocol no.188/18, against the notification for contract award with the title Supply of office for the institutions of the Municipality of Shtime with procurement no. 617/18/1016/136, initiated by the Contracting Authority (CA) - MA of Shtime, claiming that: Violation of Articles 6, 7, 59, 60, 61.2, 61.4 of the Law on Public Procurement of the Republic of Kosova, as well as Article 42, 131 of the OGPP. 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. Professional review expert in the report of the , regarding the complaining claims of the EO: N.T.P Vlora Prishtina, explained: Regarding the complaining claims of the complaining EO that CA Municipality of Shtime has violated the articles: Article 6 - Economics and Efficiency Article 7- Equality of Treatment / Non-Discrimination Article 59 - Examination, Evaluation and Comparison of Tenders Article 60 - Criteria for Contract Award Article 61.2, Not-Normally low Tender Article 42 of OG PP Tenders abnormally low- B57- Rules for tenders normally low Article 131- Violations of the Law by the Contracting Authority Complaining EO did not clearly clarify what was accurately violated by the CA regarding the articles mentioned in the complaint for which he claims that there was a violation by the Contracting Authority. However, while analyzing and reviewing the dossier of the CA, I ascertain once again that during this procurement activity CA has repeatedly violated the LPP, even after the first expertise no.107/18, where the contracting authority after receiving the expertise agreed with the expertise and allegation that it has committed violations of the LPP, for which a notice no.107 / 18 dated was issued, where both parties agreed. Contracting authority based on the notification of the PRB no.107 /

3 18 was obliged to return this procurement activity to the re-evaluation, fully respecting the provisions of the LPP. According to the dossier received from the CA it is clearly seen that CA not only has again violated the LPP in the re-evaluation of this procurement activity, but violation has also done in the process of forming the re-evaluation commission by proposing the same officials who have made the first evaluation of this procurement activity (creation of commission with same members contradicts the interpretation of the PPRC where quoted PPRC, considers that for re-evaluation, cannot be the same commission who has have been in evaluation to do the re-evaluation because that commission has made a decision for that procurement activity, so a new commission for re-evaluation of the concerned procurement activity should be formed when it is recommended re-evaluation with decision of the PRB ), for which assessment it was found that there were violations and non-compliance with LPP. CA MA of Shtime has not changed anything in the re-evaluation, but has continued to further violating the law, announcing the winner the EO who in his offer has offered extremely low prices giving unjustified, unjustifiable reasoning, a justification of which allegedly offered these prices at low prices because we are close to the municipality and do not have transport costs, continuing with reasoning that they have the same products in stock, this EO in many positions has offered prices of 0.01 cents for articles. As has claimed also the complaining EO, EO recommended for contract award for the same products in some positions has offered different prices by manipulating the prices offered in his offer. Contracting Authority for this procurement activity has violated the LPP respectively article 61, article 60, article 59, article 7, doing re-evaluation of the tenders, considering ungrounded justified justification, accepting extremely low prices, CA it could also use the B57 Rules for Not-normal Low Tenders or the Inter partes procedure. According to Article 105 point 2.16 this case is adjudicated or Res Judikata after the same complaining claims have been repeated, the assessment was the same, the subject of the context is the same and the parties are the same. I recommend the CA - MA of Shtime to fully respect the provisions of the LPP, also recommend the review panel to return this procurement activity to the re-evaluation by obliging once again CA- MA of Shtime to fully respect the LPP. Based on the abovementioned explanations, the procurement expert recommends the review panel that the complaint of the complaining EO to be partially approved as grounded, for the reason stated in the answer to complaining claim no.1 and complaining claim no.2, cancel the Notice of Contract Award for the procurement activity Office Supply for the Institutions of the Municipality of Shtime, with procurement no. procurement 617/2018/004/136, and recommends that the case returns to Re-assessment. Contracting authority - MA of Shtime, on the through memo, has notified the PRB that does not agree with the opinion of the review expert. Complaining EO: N.T.P Vlora Prishtina, on the , by memo, has notified the PRB that agrees with the opinion of the review expert. At the hearing session of the main review of the where was present the President of the review panel, representative of the complaining EO, representative of the contracting authority and review expert, were reviewed the memos of the case by checking and analyzing the documentation for the procurement procedure which consists of: authorization of initiation of the procurement activity, notification for contract,

4 contract award notice, complaint of the economic operator, report of the review expert, memos of the parties to the procedure. During the presentation at the hearing session the representative of the complaining EO Mr. Krasniqi stated: We fully agree with the opinion of Professional Expert, we consider the expertise as objective, qualitative and professional. CA-MA of Shtime did not respect the decision 107/18 issued by the PRB on the despite agreeing with the opinion of the expert. CA during the re-evaluation of the activity has continued to disregard article 6, 7, 59, 60, 61.2, 61.4 of the LPP article 42 of the OGPP and B57 the rules of tender not normally low. CA did not change anything in re-evaluation, continued with the same violations, again recommended for contract the same EO which offered extremely low manipulative prices and failed to clarify its offer, the prices provided in legal manner conform article 61.2 of the LPP. As we have noted in the complaint another fact that the EO concerned had to be treated irresponsibly by CA, is that it has offered different extremely prices for 17 spending units within MA Shtime that are included in this contract. Tens of examples have been mentioned in the complaint. During the presentation at the hearing session the representative of CA, Mrs.QARRI stated: CA has respected the LPP article 60 the criterion for contract award, respected the decision of the PRB where has returned the case for re-evaluation, has respected article 61.2 requesting clarification from the EO in question who answered and the letter you have in subjects. The CA has complied with the B57 rules for an abnormally low tender, has complied with Article 7 on Non-Discrimination. We have respected the opinion of the expert and have agreed to re-evaluate, while in the other opinion to go the date for reevaluation of , we did not agree that again the case to go for re-evaluation because CA has acted within the LPP to save the value for money. However, as a CA we will respect the decisions of the PRB, even though we have been dealing with this case for three months and as CA we have remained without official material, we request from the PRB a faster deadline if it is possible to make any decision as that decision and CA will respect it. In the final words the representative of the complaining EO Mr. Krasniqi stated: I have to relate to the argument of the representative of the CA, CA despite sending a letter for explanation of the prices that should have decided for elimination of the EO concerned given that EO has failed to send explanations regarding the production process and the cost of purchasing products that has offered unusually low prices. For example, UPS offered a price of 0.01, when it is known that the market price is around 35, so the reasoning of the EO that it is up to these prices and is willing to make the supply due to the small distance between its store and CA is unsustainable, and conform article 61.4 of the LPP, CA was supposed to eliminate as irresponsible. We request from the panel to confirm the opinion of the expert, our complaint should be approved as grounded and the case to return for re-evaluation. In the final words the representative of the CA Mr. Qarri stated: Article 61.2 has been requested clarification, CA has the standard letter for explanations that you have in the case for clarification from the EO, to the point at which the complaining EO is summoned is not taken into account proximity or distance but is based on the explanation that EO owns in stocks. CA always intends to protect value for money and price difference is 1,333 between complaining EO and EO recommended for contract. We propose to the panel to look at the case that is based on the LPP and on the spending of

5 public money, and our proposal is normally in favor of CA, and any decision taken by the PRB, the contracting authority will respect it. Review panel after reviewing the memos of the case, reviewing the complaining points of the complainant, findings, concrete analysis and recommendations of the review expert, declaration of the parties to the proceedings, discussing and screening the evidence as a whole during the hearing session of the main review, ascertains that Contracting authority has acted in contradiction with article 61 of the LPP when recommending for contract award an economic operator who has offered at prices that are not realistic to the market value. The review panel ascertains that for the procurement activity in question the economic operator recommended for contract award has offered at extremely low prices and that are not in harmony with real market values as a fact that indicates that the concerned economic operator did not bid with the real value of the market is the price given for UPS, where this EO for this product has offered at a price of 0.01, when it is known that the market price for the same product is over 30. The review panel ascertains that the contracting authority did not act right when it established the re-evaluation commission of the tender, proposing the same officials who have made the first evaluation of this procurement activity for the fact that (creation of commission with same member is in contrary to the interpretation of the PPRC where it is quoted PPRC, considers that for re-evaluation, the same commission that has been in the evaluation cannot make re-evaluation because that commission, a decision has taken for that procurement activity, therefore a new commission for re-evaluation of the concerned procurement activity should be formed when a re-evaluation is recommended with the decision of the PRB ). Review panel 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 MA of Shtime 1x1 EO N.T.P Vlora Prishtina 1x1 Archive of the PRB 1x1 For publication on the website of the PRB.