MI/11/01/211, initiated by the contracting authority/ministry of Infrastructure, on the has issued the following:

Transcription

1 P.SH no. 77/78/79/81/11 PROCUREMENT REVIEW PANEL, appointed by the President Pursuant to the Article 105 point 1 and 2 as well article 106 of the Law on Public Procurement in Kosova no.03/l-241, composed of Mr. Hysni Hoxha-President, Mr. Ekrem Salihu-referent and Mr. Tefik Sylejmani-member, deciding according to the complaint of the EO N.N.T Magjistralja with residence in Gjilan, EO NTP EuroKos shpk & Drenica shpk with residence in Prishtina-Ferizaj, OE Shkoza F07 sh.p.k & Marsi & N.N.T AMC with residence in Prishtina dhe OE Bejta Commerc sh.a with residence in Gjilan, regarding the procurement activity Summer and winter maintenance of national and regional roads in the Republic of Kosovo on the region 1, 2, 3, 4, 5, 6, 7, 8 and 9 ", with procurement no. MI/11/01/211, initiated by the contracting authority/ministry of Infrastructure, on the has issued the following: D E C I S I O N ON THE PARTLY APPROVALS OF THE COMPLAINTS OF THE EO: OE: MAGJISTRALJA GJILAN, EUROKOS & DRENICA PRISHTINË-FERIZAJ, SHKOZA F07 & MARSI & AMC PRISHTINË AND BEJTA COMMERC GJILAN, NR. 77/ 78/79/81/11, TË DATËS: 17/ AS GROUNDED I. Refused, as ungrounded the complaint of the EO Magjistralja from Gjilan, OE EuroKos shpk & Drenica from Prishtina-Ferizaj,OE Shkoza F07 sh.p.k & Marsi &N.N.T AMC from Prishtina dhe OE Bejta Commerc from Gjilan, regarding the procurement activity Summer and winter maintenance of national and regional roads in the Republic of Kosovo on the region 1, 2, 3, 4, 5, 6, 7, 8 and 9 ", with procurement no. MI/11/01/211, initiated by the contracting authority/ministry of Infrastructure. II. Ordered the contracting authority/ministry of Infrastructure, that for the procurement activity Summer and winter maintenance of national and regional roads in the Republic of Kosovo on the region 1, 2, 3, 4, 5, 6, 7, 8 and 9 ", with procurement no. MI/11/01/211, to return for re-tender, if the contracting authority has still interest in this procurement activity. Contracting authority within a 15 day deadline, must notify the review panel in written form of all actions undertaken with regard to this procurement activity. III. Non-compliance with this decision shall oblige the review panel conform legal provisions of the article 130 of the LPP no.03/l-241 to take actions against contracting authority, that doesn t respect the decision of the Review Panel provided for in this Law.

2 IV. Complaining economic operators Magjistralja, EuroKos shpk & Drenica, Shkoza F07 sh.p.k & Marsi &N.N.T AMC and Bejta Commerc conform article 118 point 3, it is returned the insurance of the complaint in the sum of Euro (five hundred Euro). REASONING Economic operator Magjistralja from Gjilan, OE EuroKos shpk & Drenica from Prishtina-Ferizaj,OE Shkoza F07 sh.p.k & Marsi &N.N.T AMC from Prishtina dhe OE Bejta Commerc from Gjilan, as dissatisfied parties on the and lodged complaints with protocol no. 77/11, 78/11, 79/11 and 81/11 against the notification for contract award to EO Mitrovica-B Jasne ZubinPotok; Mitrovica-A AlkoImpex Prishtina; Prishtina- B Integral Prishtina; Prishtina -A Arbotec Prishtinë; Ferizaj RSM&Ekskavatori Ferizaj, Prishtina: Gjilan - Tali Gjilan; Pejë- Granit Istog; Prizren- FamisCo Suhareka and Gjakova Victoria&Eurofamis Suhareka, regarding the procurement activity Summer and winter maintenance of national and regional roads in the Republic of Kosovo on the region 1, 2, 3, 4, 5, 6, 7, 8 and 9, initiated by the contracting authority/ministry of Infrastructure. EO Magjistralja from Gjilan claims that contracting authority has made substantial violation of the provisions of the LPP nr.03/l-241 as: Violation of Article 7 of the LPP-equality of treatment, because in the tender to the division in lots page 7 / 96, it required very clearly and expressly stated "if a EO is running on more than one Lot, OE then should have this equipment to any part as provided in that part of the tender dossier. Based on this report if we refer to the public opening of the OE recommended for the contract for the region of Gjilan SHPK "Tali", has applied to five (5) different regions, like Region Gjilan, Prishtina A, B Pristina, Mitrovica Region A and Ferizaj, which means that the operator in case of any region where has applied is supposed to fulfill the requirements related to technical and professional wrestlers for five regions, which in reality if we refer to the participating operators in other regions, then it would be impossible to meet the technical and professional suitability for the region where they compete. Violation of Article 54 of the LPP - Notice to bidders eliminated; Violation of Article 59 of the LPP - examination, evaluation and comparison of tenders;

3 Violation of Article 60 of the LPP - criteria for the award, where the assessment criteria has been the accountable tender with the lowest price. EO EuroKos shpk & Drenica from Prishtina- Ferizaj claims that contracting authority has made substantial violation of the provisions of the LPP nr.03/l-241 as: Violation of Article 7 of the LPP, paragraph 1, 2, 3, 4, 5 and 6; Violation of Article 28 of the LPP - Annex 3. Mandatory technical specifications; EO Shkoza F07 sh.p.k & Marsi &N.N.T AMC from Prishtina- claims that contracting authority has made substantial violation of the provisions of the LPP nr.03/l-241 as: Violation of Article 7 of the LPP-Equality of treatment - no discrimination; Violation of Article 60 of the LPP-contract award criteria. EO Bejta Commerc from Gjilan claims that contracting authority has made substantial violation of the provisions of the LPP nr.03/l-241 as: Violation of Article 7, paragraph 1, 2, 3 and 4 of the LPP-Equality of treatment - no discrimination. Procurement Review Body, after the receipt of the complaint based to the Article 113 and 114 of LPP no. 03/L-241 assigned the procurement review expert in order to review the procurement activity and validity of all complaining claims of the complaining parties EO Magjistralja from Gjilan, OE EuroKos shpk & Drenica from Prishtina- Ferizaj,OE Shkoza F07 sh.p.k & Marsi &N.N.T AMC from Prishtina dhe OE Bejta Commerc from Gjilan. The review expert in the expertise s report of the has ascertained that contracting authority during the course of this procurement activity, hasn t respected article 7, 27 and 28 of LPP, therefore recommends the review panel to approve as partly grounded the complaints of the complaining EO as well orders the CA to re-tender this procurement activity. Contracting authority through memo with protocol no. 77/78/79/81/11 of the has notified the PRB that doesn t agree with the opinion and ascertainments of the review expert given in the expertise s report of the , at the same time the CA proposes the review panel to refuse as ungrounded the complaints of the complaining EO. During the main review session of the , in which were present the representatives of the complaining EO, representative of the CA as well the review expert, were presented proof while doing the checking and analyzing of the material of this procurement activity which compounds; authorization of this activity, notification of contract, record on the offer s opening, decision on establishment of the offers evaluation commission, report of the offers evaluation, notification on contract award,

4 complaints of the Economic operators, review expert s report, the answer of the CA on the expertise s report. During the main session, the Chairman of the Review Panel gave the word to the representative of the complainant EO "Magjistralja" which stated: we have expressed our views that there are many irregularities in this procurement. CA requirements for technical staff who asked for all the lots separately is a discriminatory criterion, and that is inconsistent with Article 7 of the LPP, and adds that I remain entirely at our complaint. Chairman of the Review Panel gave the word to the representative complainant EO "Eurokos" shpk & "Drenica" which stated: we have received a letter from the PRB where we were familiar with the report of the review experts, but are not familiar with the memo of the CA dated the attitudes of the CA to review experts report. So we think that this procurement activity to return to re-evaluation, because during the evaluation process, the Evaluation Commission of the CA has not refrained assessment criteria specified by itself CA. Following the session the President of the Review Panel gave the word to the representative of the complainants EO "Shkoza F07 sh.p.k &" Marsi "& N. N.T"AMC "which stated: we have not received the submission of the CA where it is refused the review experts report, we think that this is a violation of the provisions of the LPP, because CA has an obligation to inform us of its decision. We remain entirely at the complaint and agree with the conclusion of the review expert stating that it was violated Article 7 of the LPP, which is absolute violation and not a relative violation. Chairman of the Review Panel gave the word of the representative of the complainant EO "Bejta commerce " which stated: CA in obtaining follow act-expertise did not inform the complainants EO of his submissions, despite a legal obligation, which means that here it hides a certain interest, because providing three (3) consecutive years of the same company it is understood that the tender takes a one source character. CA has specified as the main criterion for the contract award the cheapest price, while on the estimate has acted contrary to this criterion. In the continuation of the hearing the Chairman of the Review Panel gave the word to the representative of the CA who stated: these that are stated above, are prejudice and not facts, we think that the complete tender dossier is in compliance with the LPP, and not the requirements of EO complainants. Review Experts have not kept under Article 113 paragraph 2 and Article 114 paragraph (ii) of the PPL, because at any stage did not cooperate with CA and have not interviewed any officials of the CA. Review experts have come out of their responsibilities, with the authority of the PRB. So review experts have analyzed the claims of complainants OE, but simply run out of domain of OE claims and made the analysis of the case which they weren t requested not even from the complainants themselves. Findings that were heard for a violation of Article 7 of the LPP, it is not our duty to conclude, but it is the responsibility of the PPRC. Chairman of the Review Panel gave the word to the review expert which stated: According to the documentation that we had available we consider that the CA didn t respect article 7 of the LPP paragraph 6 (i), (ii) and (iii), which means under paragraph 6 (i) has not been given a wider possible participation of EO regarding price and

5 procurement case for this procurement activity. This has to do with discrimination and preferential criteria, as the CA in 2007 and 2008 on the same required for the criteria for circulation quote "Total monetary value of services and executed works in the field of maintenance and construction of roads or regional for the past three years, and now in 2010 changed this requirement and stated decisively "Total monetary value of completed works and services in the area of summer and winter maintenance of roads in the past three years, " which Such a criterion wasn t required never until now, because as I know summer road maintenance has been separated from winter road maintenance and that monetary value was also required for the construction of roads, which haven t been made in this procurement activity. Review Expert relating to this criteria stated: Kosovar Association of construction of roads on the , following publication of the contract has required from CA exactly that this criterion to be removed, because it is discriminatory to other companies that deal to this activity. Furthermore, us as experts on this subject have noticed the criteria "Evidence of sufficient working capital for this contract - minimum of 50% of the value of bid ((access to credit or have available other financial resources.) for the Lot to which applies "which criterion we consider that was not supposed to put in the tender dossier, because it loads without the need EO participating in this tender. Also we think that this criterion was discriminatory and in a way liable for EO to have access - to borrow from banks, where the CA to meet the contract can comply with the requirements of Article 63.2 of the LPP. Regarding the claim of the complaining economic operator where it is emphasized : that the reasons of elimination aren t eliminating point in the tender dossier, but the technical requests which could be required from consortium as additional information for which we have signed and stamped the statement on the additional information, Review panel based on the findings of the review expert ascertains that it is true that in the bid of the complaining EO exist several ISO certificates, but in the tender dossier except the ISO certificates were required the A tests for the material that it would be used for this project, in this case to the complaining EO lacks the A test exactly for the columns called as Towers. Regarding the claim of the complaining economic operators where it is emphasized that CA has violated article 7 of LPP, review panel based on the findings of the review experts ascertains that such claim is grounded for the fact that CA has to take necessary measures in order to ensure participation as much as possible of the economic operators in compliance with the purpose of the procurement activity analyzing also the selection criterions. Review Panel considers that with regard to circulation required by the Contracting Authority in the future be required or taken into consideration the other relevant evidence concerning the paving of roads, fixing roads or similar nature of work, and not to require the circulation only for completed work and services in the area of summer and winter maintenance of roads, because this criterion discriminates and reduces competition of the economic operators.

6 Review Panel after reviewing the memos of the case, the evaluation report of the evaluation commission, the ascertainments mentioned in the expertise of the review expert, reviewing of the complaining claims of the complainants which were evaluated as grounded, the statements of the representatives of the complaining EO, statement of the representative of the CA, as well the explanations given by the review experts during the hearing session, ascertained that CA has violated article 7 and 27of LPP, during the offer s evaluation process as complainants claimed. Review panel based on that was said above, evaluated that the complaints of the complaining EO Magjistralja from Gjilan, EuroKos shpk & Drenica from Prishtina- Ferizaj, Shkoza F07 sh.p.k & Marsi &N.N.T AMC from Prishtina and Bejta Commerc from Gjilan, are partly grounded, hence decided as in the provision of this decision. Legal advice: Aggrieved party can not appeal against this decision, but it can file charges in front of the Supreme Court of Kosovo, within 30 days after the receipt of this decision. Chairman of the Review Panel Hysni Hoxha