PROCUREMENT REVIEW PANEL

Transcription

1 P.SH 174/18 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. Blerim Dina President, Mr. Nuhi Paçarizi referent, Mr. Goran Milenković member, deciding on the complaint lodged by the Economic operator: SH. P.K Erdi Group & Papenburg & Adriani Company sh.p.k- Gjilan - Ferizaj, against the notification for cancellation of the procurement activity with title: Construction of Sidewalks in Dardania Neighborhood, with procurement no.: , initiated by the Contracting authority (CA) Municipality of Gjilan, on the has issued this: DECISION I. APPROVED, as partly grounded the complaint of the Economic operator SH. P.K Erdi Group & Papenburg & Adriani Company sh.p.k- Gjilan - Ferizaj, regarding with the procurement activity with title Construction of Sidewalks in Dardania Neighborhood, with procurement no.: , initiated by the Contracting authority (CA) Municipality of Gjilan. II. CANCELLED the notification for cancellation of the procurement activity with title Construction of Sidewalks in Dardania Neighborhood, with procurement no.: , initiated by the Contracting authority (CA) Municipality of Gjilan, 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: SH. P.K Erdi Group & Papenburg & Adriani Company sh.p.k- Gjilan - Ferizaj, 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: The bid s opening was made on the: , where eight (8) economic operators participated. Standard Letters for Economic Operators: SH.PK. Erdi Group & Papenburg & Adriani Company sh.p.k - Gjilan - Ferizaj, as an unsuccessful bidder from the contracting authority, was sent on the: The notification for cancellation of the procurement activity from the contracting authority, regarding this procurement activity was done on the: Against the notification for cancellation of the procurement activity regarding this procurement activity, economic operator: SH.PK. Erdi Group & Papenburg & Adriani Company sh.p.k - Gjilan - Ferizaj, on the has made a request for reviewing at the contracting authority. On the , the contracting authority has decided and rejects the request for reviewing of the EO: SH.PK. Erdi Group & Papenburg & Adriani Company sh.p.k - Gjilan - Ferizaj. Complaining economic operator: SH.PK. Erdi Group & Papenburg & Adriani Company sh.p.k - Gjilan - Ferizaj, as a dissatisfied party, has lodged a complaint at the PRB, on the 26 of April 2018, with procurement no.174/18, against the notification for contract award with the title Construction of sidewalks in the Neighborhood Dardania, with procurement no , initiated by the Contracting Authority (CA) - Municipality of Gjilan, claiming that contracting authority has acted in violation of the following articles: Violation of Articles 1, 6, 7, 59, 60, 62, 72 of the Law on Public Procurement of the Republic of Kosova, as well as the decision of the PRB no. 319/17 of the , and the decision of the PRB no.34/18 of the 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 Expert, in the report dated: , regarding the complaining claims of the complaining EO, that CA Municipal Assembly of Gjilan has violated article 1, 6, 7, 59, 60, 62 and 72 of the LPP on the receipt of the decision for cancellation of the procurement activity with the reasoning that all responsive offers exceed the budget of the contracting authority for this procurement activity, based on the facts found in the case of handling the case, the review expert ascertains that these complaining claims of the complaining economic operator are grounded because CA Municipal Assembly of Gjilan on the occasion of initiation of the procurement procedure has planned a budget for carrying out this procurement activity in the amount of 569, this fact is confirmed by the standard documents: Statement of Needs and Determination of the Availability of Funds of the same budget is presented in the tender dossier and in the contract notice published on the , based on these documents CA Municipal

3 Assembly of Gjilan on the and on the after the evaluation it means the re-evaluation of the bids based on the decision of the PRB - RP no.319 / 17 dated 13/10/2017, announced the winner in both cases through the contract award notice Group of OE GRUP OF EO: GLOBI-M ARCH NDËRTIMI SHPK with bid value of 350,840.85, and after re-evaluation for the second time of the bids based on the decision of the PRB no.34 / 18 of the , the re-evaluation committee of the CA have recommended for contract the EO GROUP: ERDI GROUP & PAPENBERGU & ADRIANI COMPANY SHPK, GJILAN which has submitted the cheapest offer with price of: 349,229.99, this recommendation has been approved by the procurement manager. The cancellation of the procurement activity was done upon the request of the procurement unit with the of the date for reconfirmation of the budget addressed to Mr. Naser Korça Director of the Directorate for Public Services at the same time the initiator of the request for the realization of this procurement activity, which on the same date of the 30 of March 2018, with the returns the response to the procurement unit that the activity in question was initiated in 2017 and we have estimated that most of the works will be completed in 2017 as we had planned the means last year, and has ascertained that the amount calculated in the amount of 569, for this year does not stand as well as ascertained that We as a requesting unit for this activity and this year have foreseen no more than about 320,000.00, therefore we should reduce the pre-measures and pre-calculations for this activity so as not to unnecessary debts are created and the rest of the project is continued over other years based on budgetary planning. As well as on the Mr. Avdyl Jerliu Director of Budget and Finance through letter no.73 requests from Ms. Jehona Hyseni A.C. Procurement Chief that the procurement activity Construction of sidewalks in the neighborhood Dardania, with procurement no.: GL , to cancel with the reasoning that there is insufficient funds for the development of this activity, arguing that in the budget of 2016 are provided financial means for conducting the procurement activity but in the drafting of the 2018 budget have changed the needs of the Directorate of Public Services and there are not sufficient funds, and besides the cancellation, it is required to re-issue the activity according to the DFS requirements and the existing budget availability. The review expert analyzed the 2017 Budget Law drafted in 2016, in which law on page 100 is foreseen the project entitled Renovation of roads, sidewalks and parks in towns and villages in the amount of 518, as well as in the same law for the same project is planned budget for 2018 in the amount of 468, and for the year 2019 in the amount of 464, and that the total budget value planned for the activity in question for the three years 2017,2018 and 2019 has been equal to 1,451, Whereas in the 2018 Budget Law drafted in 2017, in which Law on page 104 is foreseen the project entitled Renovation of roads, sidewalks and parks in towns and villages in the amount of 114, as well as in the same law the same project is planned budget for 2019 in the amount of 130, and for 2020 in the amount of 160, and that the total budget value planned for the activity in question for the three years 2018,2019 and 2020 is equal to 404, Based on the facts mentioned, the review expert finds it clear that in none of the budget laws (2017 and 2018) the CA does not have a fixed budgetary plan in the amount of 569,429.47, while in the case of initiating the procedure for the activity in question in 2017 both officials Mr. Nask Korqa and Mr. Avdyl Jerliu initiated respectively approved the development of the procurement procedure in the amount of 569, From these facts the review expert thinks that this activity was initiated in order to implement and implement the project over two or three years continuously, as well as from the requests of the officials concerned it is clearly seen that their request for cancellation of the activity has to do in order to change

4 the prior measures and prior calculation and the forecast according to the budget of 2018 and the rest of the project to be realized according to budget planning in the coming years, their reasoning and action is in full contravention with the LPP because they seek to divide the request instead of approving the conclusion of the contract and taking measures that by budget review in the second semester of 2018 or conform project implementation to foresee the budget for the project in question when drafting the 2019 budget. Regarding the other complaining claim of the complaining EO, that Municipal Assembly of Gjilan did not implement the PRB Decision-PSH no.319/17 of the 13/10/2017 and the Decision of the PRB-PSH no.34/18 of the 06/03/2018, based on the facts found in the case of handling the matter, the review expert ascertains that these complaining claims of the complaining economic operator are partly grounded because CA on the occasion of re-evaluation of the bids has received based on the PRB Decision-PSH no. 34/18 of the 06/03/2018 and the re-evaluation committee bid of the complaining EO has recommended for contract. Based on the abovementioned explanations, the review expert proposes to the review panel that the complaint of the complaining EO to be partially approved as grounded (for the reason stated in the answer to the complaining claims 1 and 2), cancel the notice for cancellation of the procurement activity of the CA and recommends that the case returns for re-evaluation it means Obliged CA to fully implement the provisions of the LPP regarding this activity. Economic Operator: SH.PK. Erdi Group & Papenburg & Adriani Company sh.p.k - Gjilan - Ferizaj, through a written memo of the , has notified the review panel that agrees with the report of the review expert. Contracting authority - Municipality of Gjilan, on the , by memo, has notified the PRB that does not agree with the opinion 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, professional review expert, were reviewed the case files by checking and analyzing the documentation for the procedure procurement, which consists of: authorization of initiation of the procurement activity, notification for contract, minutes on the bid s opening, decision on establishment of the bid s evaluation commission, bid s evaluation report, notification on cancellation of the procurement activity, complaint of the economic operator, the expertise's report of the PRB, the memos of the parties to the proceedings. During the presentation at the hearing session the representative of the complaining EO Mr. Jakupi stated: We as Complaining Company are completely agree with the evaluation of the review expert of this course and we evaluate it as fair. We stand by the complaint and the expertise's report for this subject. During the presentation at the hearing session the representative of the CA, Mr. Korça stated: Today with the authorization I came to protect the decision of the CA for cancellation of this activity. The reason stated in the decision lies in the fact that this activity started in 2017 somewhere in the month 6 the activity was published and the planned assets for 2017 could not be spent for this purpose due to the complaints of the EOs and their complaining claims. We as a requesting unit have clarified in the

5 procurement department request that the amount of funds planned for this project in 2017 is unlikely to be covered in We have said that this activity will be re-announced by reducing the project's prior measures in which we have planned the funds for For 2018 CA has planned 320,000 for the project in question. In the final words the representative of the EO Mr. Jakupi stated: We stand by the complaint and the complaining claims and we request for the case to return for reevaluation. In the final speech the representative of the CA, Mr. Korca: We stand by the decision of the CA and we propose to the review panel to confirm the decision of the CA and at the same time to reject the complaint of the complaining EO. Review panel, after reviewing the memos of the case, reviewing the complainant's allegations, findings, concrete analysis and recommendations of the review expert - professional, declaration of the parties to the proceedings, discussing and screening the evidence as a whole during the hearing session of the main review finds that the contracting authority has canceled this procurement activity in contradiction with article 62 of the LPP, for the fact that based on the Statement of Needs and Determination of Availability of Funds CA - with initiation of this procurement activity has planned funds in the amount of 569,429.4, to realize this project, while the price offered by the complaining EO for this procurement activity is 349, Review panel regarding the complaining claim of the complaining EO that the CA Municipal Assembly of Gjilan has violated article 1, 6, 7, 59, 60, 62 and 72 of the LPP on the cancellation of the procurement activity on the grounds that all responsive offers exceed the contracting authority's budget, ascertains that this complaining claim of the complaining EO is grounded, given that based on the facts available in the case of handling the case, the Municipal Assembly of Gjilan on the initiation of the case of the procurement procedure has planned a budget for carrying out this procurement activity in the amount of 569, , this fact is confirmed by standard documents: Statement of Needs and Determination of Availability of Funds of the same value is presented in the tender dossier and in the contract notice published on the Based on these documents CA Municipal Assembly of Gjilan on the and on after the evaluation it means the re-evaluation of the bids based on the decision of the PRB- PSH no.319 / 17 dated 13/10/2017, has announced winners in both cases different economic operators initially recommended for contract award EO GLOBI-MI ARCH NDËRTIMI SHPK with the bid amount of 350,840.85, and after the re-evaluation for the second time of the bids based on the decision of the PRB PSH no.34/18 of 06/03/2018, is recommended for contract EO ERDI GROUP & PAPENBERGU & ADRIANI COMPANY SHPK-GJILAN, which has submitted the cheapest offer with price of: 349,229.99, while this recommendation has approved the procurement manager. The review panel clarifies that the cancellation of the procurement activity was done after the request from the procurement unit with the of the date for reconfirmation of budget addressed to Mr. Naser Korça Director of Directorate for Public Services at the same time initiator of the request for realization of this activity of procurement, which on the same date of 30 of March 2018 by responds to the procurement unit that the activity in question was initiated in 2017 and we have

6 calculated that most of the works will be completed in 2017 as we have planned the tools last year, and found that the amount calculated in the amount of 569, for this year does not stand as well as ascertained that We as a requesting unit for this activity and this year have foreseen no more than about 320,000.00, therefore we should reduce the prior measure and prior calculation for this activity so as not to and the rest of the project is to be continued for other years based on budgetary planning. As well as on Mr. Avdyl Jerliu Director of Budget and Finance through letter no. Jehona Hyseni A.C. Procurement Chief that the procurement activity Construction of sidewalks in the neighborhood Dardania, with procurement no.: GL , to cancel with the reasoning that there is insufficient funds for the development of this activity, arguing that in the budget of 2016 are provided financial means for conducting the procurement activity but in the drafting of the 2018 budget have changed the needs of the Directorate of Public Services and there are not sufficient funds, and besides the cancellation, it is required to re-issue the activity according to the DFS requirements and the existing budget availability. The review panel based also on the analysis and findings of the professional review expert, where he analyzed the 2017 budget law drafted in 2016, in which law on page 100 is foreseen the project titled Renovation of roads, sidewalks and parks in cities and villages in the amount of 518,672.00, and in the same law for the same project is planned budget for 2018 in the amount of 468, and for the year 2019 in the amount of 464, that the total of the budgeted budget amount for the activity in question for the three years 2017,2018 and 2019 was equal to 1,451, Whereas in the 2018 Budget Law drafted in 2017, in which Law on page 104 is foreseen the project entitled Renovation of roads, sidewalks and parks in towns and villages in the amount of 114, as well as in the same law the same project is planned budget for 2019 in the amount of 130, and for 2020 in the amount of 160, and that the total budget value planned for the activity in question for the three years 2018,2019 and 2020 is equal to 404, Therefore, based on the explanations given above, the review panel finds it clear that in none of the budget laws (2017 and 2018) the CA does not have a fixed budgetary plan in the amount of 569,429.47, while in the case of initiating the procedure for the activity in question in 2017 both officials Mr. Naser Korça and Mr. Avdyl Jerliu initiated respectively approved the development of the procurement procedure in the amount of 569, The review panel ascertains that this activity was initiated in order that the implementation and realization of the project to be done during two or three years continuously, also from the requests of the CA officials mentioned above it is clearly seen that their request for cancellation of the project the procurement activity has to do with the purpose of changing prior measures and prior calculation in accordance with the budget of 2018 and the rest of the project to be carried out conforming to the budget planning in the coming years, their reasoning and action is in full contravention with the LPP because require the division of the request instead of approving the contract award and take measures that by budget review in the second semester of 2018 or in conformity with project implementation to foresee the budget for the project in question when drafting the budget for 2019.

7 The review panel ascertains that the cancellation of this procurement activity is done without the fulfillment of the reasons set forth in Article 62 paragraph 1.2 of the LPP. 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. Blerim DINA Decision to be submitted to: 1x1 CA Municipality of Gjilan 1x1 EO SH. P.K Erdi Group & Papenburg & Adriani Company sh.p.k- Gjilan - Ferizaj 1x1 Archive of the PRB 1x1 For publication on the website of the PRB.