PROCUREMENT REVIEW PANEL

Transcription

1 P.SH 340/17 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. Blerim Dina- referent, Mr. Nuhi Paçarizi - member, deciding on the complaint lodged by the EO Luzern Prishtina, regarding the procurement activity: Hotel Services for Government Buildings - for Prime Minister and MF - Lot I, with procurement no.202/17/141/211, initiated by the Contracting authority (CA)- Ministry of Public Administration, on the has issued this: DECISION I. APPROVED, as partly grounded the complaint of the EO Luzern - Prishtina, regarding with the procurement procedure with title Hotel Services for Government Buildings - for Prime Minister and MF - Lot I, with procurement no.202/17/141/211. II. III. IV. CONFIRMED, the decision for contract award of the CA Ministry of Public Administration, regarding with the procurement activity: Hotel Services for Government Buildings - for Prime Minister and MF - Lot I, with procurement no.202/17/141/211. 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. Non-compliance with this decision obliges the Review Panel conform with the legal provisions of article 23.9 and article 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 EO Luzern - Prishtina, is approved as 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 The contract notice was issued on the , while the bidding was opened on the , and for this procurement activity - lot I, have participated four economic operators. Contract award notice for this procurement activity - Lot I, on the web: PPRC's, was done on the: The request for reviewing by the economic operator Luzern - Prishtina was done conform article 108 / A of the LPP. The decision regarding the reviewing request where it was received within the deadline set by law. Economic operator Luzern - Prishtina, as a dissatisfied party has filed complaint at the PRB on the , with protocol no.340/17, against the contract award notice, claiming that contracting authority has violated essential provisions of the LPP. Procurement Review Body after the receipt of the complaint, in the article 113 of the LPP no. 04 / L-042, has authorized the review expert to review the procedure developed regarding this procurement activity, as well as the validity of all the complaining claims of the complaining party. Review expert, in the report dated: , has ascertained that CA, in general, respected the provisions of the LPP and that the complaining claims submitted to the complaint are partly grounded, for the fact that the first reason for the elimination is not sustainable because the complaining EO has fulfilled entirely this request. Regarding the request on the technical / professional capacity, where the CA has requested a contract in the amount of 851, Euro, the complaining EO does not meet this requirement for the fact that with the contract that would cover this request of the dossier there is no reference after the end of the project, where the termination of this contract has been in June of Complaining EO Luzern - Prishtina, through the memo has notified the PRB, that does not agree with the opinion of the review expert, dated CA, also with the memo has notified the PRB that agrees with the report and ascertainment of the review expert for this procurement activity. During the hearing session of the main review, on the , in which were present the members of the Review Panel, the representative of the CA, the representative of the complaining EO and the review expert. During the hearing session, the case files were reviewed by checking and analyzing the documentation for the procurement procedure which consists of: authorization of initiation of the procurement activity, contract notice, minutes on the bid s opening, decision on establishment of the evaluation commission of the bids, the bid s evaluation report, the contract award notice, the complaint of the economic operator, the report of the review expert, the response of the CA on the expertise's report and the answer of the complaining EO on the expertise's report.

3 Following this hearing session the speech was given to the representative of the complaining EO Mr. Azemi stated: We claim again and we are on that CA has violated article 6 of the LPP where has declared the winner of the group of EO Beni Dona Plast shpk & Aktiv shpk with the price of 25.15, which is more expensive for than the company Luzern. In this case it is worth mentioning that the difference between the price of the EO recommended for contract is 104% where it damages the budget with hundreds of thousands of euro within the 3 year contract term. We claim also that Article 7 is violated of the Equality in Treatment because the CA did not put us in equal position with other EOs but has discriminated us. In opening minutes the company Luzern has bid at the lowest price of Also it is violated article 59 of the LPP, for comparison and examination, since the CA has not been in accordance with the requirements set out in the contract notice. It is violated Article 60 the criterion for contract award the lowest price, as well as article 68 the financial economic situation. It is worth mentioning that CA, in the notification dated has sent us standard letter for the eliminated bidder and I wish to offer the panel as evidence, whereby we have been eliminated only for one criterion, with the justification that we did not provide sufficient evidence for copies of the financial report for the three years , where according to them we do not fulfill the turnover for two lots of 1,135,000.00, where at the criterion for the contract notice does not exist at all this turnover, only it is EO should have turnover in the last three years for lot 1 value and for lot 2 worth For this criterion has agreed also the PRB review expert that CA has done violation, but neither the CA nor the expert was interested in the decision 233/17 dated where in this decision decisively and clearly shows how to deal with tender divided into Lots, but the expert has avoided this decision, which is deliberate how to act in these cases. CA after the standard letter of elimination when we have made a request for reviewing at the CA, have added a point or criterion where the evaluation report where the chairman was the representative of the CA have been evaluated as fulfilled. While in the decision to reject the request of the CA also elaborates this point that allegedly the contracts EO Luzern does not meet based on the criteria of the tender dossier. When the expert has approved as a completed criterion for Lot 1 and Lot 2 it is illogical that the expert does not evaluate as a completed criterion also the contract, but says does not complete the amount according to the criterion. The CA is playing the role of sanctioning and punishing for the EO and not as motivation for which is also the division into Lots of the procurement activities. We believe that we fulfill the criterion of the CA, due to the decision of the PPRC. Following the hearing session the speech was given to the representative of CA Mr. Rugova stated: In principle, we agreed with the opinion of the review expert of the PRB. Contract Notice CA, believes that it has implemented all points of the LPP, that complaining EO claims that the CA has violated. The criterion for award was the responsive tender with lowest price. Requirement of the professional technical capacity has been that EOs should provide evidence that they have concluded similar nature contracts (catering services - gastronomy - or food supplies) followed by references in the last three years Total not less than 851, for both lots. EO Luzern has provided a list of projects that according to him completed reaches amount to 1,107,666.63E.

4 In this list of contracts is included the public contract signed between CA-MPA and EO Luzern has the date of registration with deadline of 36 months and this contract ends on the , and the request has been for the last three years , and this contract is not accompanied by reference and EO Luzern has no reference. CA, based on article 69 paragraph 6 point 6.2 of the LPP, numerous interpretations of the PPRC, cannot have reference to unfinished project. Complaining EO did not meet the criterions outlined in the tender dossier and CA, has fully respected the provisions of the LPP. Following the hearing session the speech was given to the review expert Mr. Basha who stated: The first reason for the elimination, as I have mentioned in the expertise of the complaining EO has fulfilled entirely this requirement. Whereas regarding the request for technical / professional capacity where the CA has requested a contract in value of 851,250.00, the complaining EO does not meet this requirement for the fact that with the contract that would cover this request of the dossier has no reference issued after the end of the project where the termination of this contract has been in June of In the final words, the representative of the EO Mr. Azemi stated: I proposed to the review panel to approve my complaint and the CA the case to return for re-evaluation. In the final words the representative of the CA Mr. Rugova stated: I propose the Review Panel to approve the decision of the CA for contract award, while the complaint of the complaining EO to reject as ungrounded. In the final words, the review expert Mr. Basha stated: Stand by the expertise's report and the findings and recommendations given in the report. Review panel after reviewing the case files, evaluation report of the evaluation commission of the CA, reviewing the complaining point of the complainant, the findings, concrete analysis and recommendations of the review expert mentioned in the expertise, memo of the complaining EO, memo of the CA, discussion and screening of the evidence throughout the hearing session for the main review, ascertains that the reason for eliminating the complaining EO was did not meet the requirement, regarding the financial condition provided for in Article 8.2 of the TDS where it is required that the economic operator Lot 1 should have turnover in% of the amount of: 515, Euro, since the complaining EO has provided sufficient evidence to meet this requirement. Whereas CA has eliminated the complaining EO that it did not meet the turnover request in the amount of: 1,135, euro but this request does not exist in the tender dossier, therefore the review panel based on request of TDS 8.2, ascertains that complaining EO has provided the documentation and the evidence as requested in the tender dossier and the contract notice. Whereas the contracting authority cannot eliminate the economic operator for the requests that are not foreseen in the TDS and the contract notice, this is also foreseen in article 56.3 of the LPP. Regarding the other reason for the elimination of the complaining EO that he did not fulfill the requirement regarding the contracts and references in the amount of: 851, euro, the review panel, based on the request of the tender dossier provided in article 9.1 of the TDS, ascertains and evaluates that the complaining EO does not fulfill the requirement of the tender dossier regarding the contracts and references of

5 851, euro as stated in point 9.1 of the TDS, because there is no evidence for the contracts stipulated in the contract list, especially the contract with a value of 567, presented by the complaining EO is signed in 2014 as a framework contract envisaged to be completed in June 2017, therefore this complaining EO did not provide evidence that has successfully completed this contract, since in the tender dossier has provided an extended reference in 2014 for this project, so without finalizing the contract. Therefore review panel, based on article 117 of the LPP, and relying on 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. Goran MILENKOVIĆ Decision to be submitted to: 1x1 CA Ministry of Public Administration 1x1 EO D.P.H LUZERN - Prishtina 1x1 Archive of the PRB 1x1 For publication on the website of the PRB.