DECISION. , with procurement no.622/17/3318/511, initiated by the Contracting authority (CA) Municipality of Prizren.

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1 P.SH 480/17 502/17 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. Nuhi Paçarizi referent, Mr. Blerim Dina member, deciding on the complaints lodged by the economic operator Kag Asphalt - Prizren and EO Rafi i - Rahovec, agains the contract award notice, regarding with the procurement activity with title: Construction of the Olympic swimming pool in Prizren, with procurement no.622/17/3318/511, where EO recommended for contract is Çlirimi - Prizren, initiated by the Contracting authority (CA) Municipality of Prizren on the has issued this: DECISION I. APPROVED, as partly grounded the complaints of the complaining economic operator Kag Asphalt - Prizren and EO Rafi i - Rahovec, regarding with the procurement activity with title: Construction of the Olympic swimming pool in Prizren, with procurement no.622/17/3318/511, initiated by the Contracting authority (CA) Municipality of Prizren. II.CONFIRMED, the contract award notice of the CA/Municipality of Prizren for the procurement activity with title: Construction of the Olympic swimming pool in Prizren, with procurement no.622/17/3318/511. 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 complaints of the complaining economic operator Kag Asphalt - Prizren and EO Rafi i - Rahovec, are approved as partly grounded, it is returned the insurance fee of the complaint in the amount deposited on the occasion of 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: Bid s opening was planned to be done on the: , while participants in this procurement activity were eleven economic operators. Contract award notice from the contracting authority, regarding this procurement activity was done on the Standard Letter of Economic Operator Kag Asphalt - Prizren as unsuccessful bidder from the Contracting Authority, was sent on the The standard letter for Economic Operator Rafi i - Rahovec by the Contracting Authority was not sent. Against the notification for contract award notice regarding this procurement activity, economic operator Kag Asphalt - Prizren on the , has submitted a request for reviewing at the contracting authority. Against the notification for contract award notice regarding this procurement activity, economic operator Rafi i - Rahovec on the 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 complaining EO Kag Asphalt, whereas the request for reviewing of the complaining EO Rafi i, was also rejected by the CA on the Complaining economic operator Kag Asphalt Prizren, as a dissatisfied party, has lodged a complaint at the PRB, on the 05 of December 2017 with protocol no. 480/17, against the notification for contract award, regarding the procurement activity with the title Construction of the Olympic swimming pool in Prizre with procurement no. 622/17/3318/511, initiated by the Contracting Authority (CA) - Municipality Prizren: The contracting authority has acted in violation of Articles 1, 6, 7, 59, 60, 61, 68 and 69 of the Law on Public Procurement of the Republic of Kosova. Complaining economic operator Rafi i - Rahovec, as a dissatisfied party, has lodged a complaint at the PRB, on the 12 of December 2017 with protocol no. 502/17, against the notification for contract award regarding the procurement activity with the title Construction of the Olympic swimming pool in Prizren, with procurement no.662 / 173/318/511, initiated by the Contracting Authority (CA) - Municipality Prizren: The contracting authority has acted in violation of Articles 1, 6, 7, 54, 56, 59, 60 and 69 of the Law on Public Procurement of the Republic of Kosova. Procurement Review Body, conform article 113 and 114 of the LPP on the has authorized the procurement review expert to review the validity of all complaining claims of the complaining party. Review expert regarding the complaining claims of the complaining EO Delta Ing, in the report dated: has ascertained that after the decision with protocol no. 378/17 of the RP, CA has re-evaluated this procurement activity and at the same time according to the decision of the RP, has requested clarification from EO Çlirimi, regarding the banking transactions of the contract that was reviewed at the hearing session of the:

3 EO recommended for contract according to the request that CA has submitted to CA, the requested clarification, where he has submitted the bank transactions in which are the payments - transfers made by Sejdi Rexha to EO Çlirimi from 2014 until 2016, where the value of the transfers made is over 1,100, euro, which means that no full payment has been made. Transfers made are documents issued by Kosova banks and also has speculated on payment of funds and speaks of payments issued in the Swiss franc currency. Therefore, the commission evaluating these additional evidence required in the decision of the RP, assessed it as sufficient and recommended it for the contract. Complaining EO Kag Asphalt in his complaint claims that EO Rafi II is irresponsible on the grounds that, there are no contracts and similar references to this project and that he did not provide that the project manager managed a pool contract. The review expert in this complaining claim clarifies that this complaining claim is ungrounded for the fact that the offer contains a reference issued by Louise Berger for the project manager Milot Muhaxheri who has managed the construction of a swimming pool and also in the original offer is also the contract and reference to building a pool. Regarding the complaining claim of the complaining EO regarding the bid of EO Olti Trasing for which he claims that the manager is not experienced and that there are no contracts and references, the review expert clarifies that this complaining claim is grounded with the fact that since that the review expert has examined the bid of the EO Olti Trasing, has noticed that there is no contract in the construction of swimming pools, the only contract close to the nature of this procurement activity is the construction of tanning facilities. Also regarding the experience of the project manager, the review expert clarifies that in the bid we have a reference on the field reportedly managed the pool construction at the Beni Dona residential building I and II and attached pictures. Regarding the complaining claim of the complaining EO, that EO Al Trade, which is unsuccessful, has no contract and reference in the construction of the pool and that it has submitted a contract with Private Economic Operator, bank transactions and also claims that the manager there is no evidence required under the tender dossier. The review expert regarding these complaining claims clarifies that it is unsustainable the complaining claim that there is no evidence of the work experience of the project manager for having evidence in the original offer and also as far as the contract and reference is concerned, the complainant itself accepts that he has but there are no bank transactions, a request that is not in TD. Regarding the complaining claim of the complaining EO that EO Thesari, has no contract and reference for similar project, the review expert clarifies that the contract and the reference submitted in the original bid is on behalf of the member of the consortium EO Al Asfalt and in based on paragraph 4 of Article 71, the evaluation of bids is made to the group as a whole and not separately to the members of the group. Regarding the complaining claims of the complaining EO Rafi regarding the experience of the project manager of the EO recommended for contract, the review expert clarifies that in the offer EO recommended has provided evidence that the manager has experience in pool management.

4 Regarding the complaining claim of the complaining EO, which has to do with the contracts and references of the EO Olti Trasing and the experience of the project manager, the review expert on this issue has given the above explanation. Regarding the complaining claim of the complaining EO that EO Al Trade is irresponsible on the grounds that he has been appointed project manager by an engineer who is Hydro direction and that is in contradiction with the tender dossier request because it was required to be the construction direction, the review expert clarifies that the project manager's appointment was made upon the request of the tender dossier, where it was required to be only a construction engineer and no direction was mentioned. Therefore, this complaining claim is unstable. Also regarding the complaining claim that the aforementioned manager did not have experience in the subject matter, the review expert clarifies that EO Al Trade provided the required evidence in the tender dossier. Regarding the complaining claim of the complaining EO that deals with the contracts and references of the EO Al Trade, for which the complaining EO claims that there are no contract of nature of the project, the review expert clarifies that EO Al Trade has submitted several contracts for the construction of water basins, but for drinking water basins. The review expert evaluates these contracts as of a similar nature. Also complaining EO Rafi has complaining claims regarding the transfers of the recommended contractor which requires that the same be verified also in the Tax Administration of Kosova, with the reasoning that any purchase - sale over the value of 500 euro should pass through TAK -se and the amounts presented should be taxed according to the law on tax administration and at the same time requires the verification of cash payments made by the contractors of the construction contract of the pool. The review expert clarifies that all means that pass through the banking system is the competence of other institutions to investigate and verify and is not the competence of the PRB. Based also on that this allegation of the complaining EO is not a request of TD, therefore conform article 41.1 of the ROGPP, the review expert evaluates that CA has respected article 59 and 60 of the LPP - the main criterion for contract award. Therefore, in the end based on the explanations given has proposed to the review panel to approve the decision of the CA for contract award, while the complaints of the complaining EO to approve as partly grounded. Complaining Economic Operator Kag Asphal - Prizren through written memo of the , has notified the Review Panel that does not agree with the report of the review expert. Complaining Economic Operator Rafi i - Rahovec, through written memo of the , has notified the Review Panel that it agrees partly with the report of the review expert. Contracting authority through written memo of the , has notified the Review Panel that it agrees 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 Kag Asphalt, representative of the complaining EO Raf i, review expert of PRB, representative of the CA. Subsequently, the case files were reviewed by checking and analyzing the documentation for the procurement procedure which consists

5 of: authorization of initiation of the procurement activity, notification for contract, minutes on the bid s opening, decision on establishment of the evaluation commission of bids, report of the bid s evaluation, notification on contract award, complaint of the economic operator, report of the PRB expert, memos of the parties to the procedure. During the presentation at the hearing session the representative of the complaining EO Kag Asphalt Mr. Ferati declared: We as a consortium Kag & Poëatek stand entirely to our complaining claims filed in the complaint. We disagree with the opinion the expert has provided. Whereas regarding the winning bid of EO Çlirimi, we think that CA, in this case Municipality of Prizren, on the occasion of evaluation and comparison of tenders did not respect article 59 of the LPP, since it has again recommended second contract award to EO Çlirimi which did not meet the requirements in the TDS, the requirement regarding the contracts and references of a pool, which was required to be a value of 6 million in similar projects. This EO has offered a signed contract with a private person Mr. Sejdi Rexha which was signed on the , entitled Construction of the pool in the amount of 1,942,589.85, as well as this contract has attached a reference. In access to the documents we had, for the second time on the we have noticed that EO Çlirimi provided some additional evidence as they were requested by CA. But these evidence does not match the contract in most cases with bank transactions. But even if this contract was accepted by CA, again the turnover value of 6million euro in similar projects is not met. The EO has also attached a list of contracts where there is not mentioned the construction of the swimming pool but some other projects are also not similar in nature and are road and construction of facilities. Therefore we think that this EO is not accountable for the fact of not fulfilling the request foreseen in article 9.1 and 9.2 of the tender dossier since they have not provided proof of contracts and references of this nature. Therefore, we think that the EO recommended did not meet the requirements with financial economic situation and professional technical condition. Also in accessing the documents of other companies that are proclaimed accountable by CA, we add that even these companies do not meet the terms and conditions of the tender dossier. One of them is the company Rafi declared responsive, lacks similar projects and references as required by the tender dossier and also the project manager has not proved that he has completed any pool contract. Other company Olti Trasing also lacks the projects and references similar to this project and the manager has not proved that he has completed any pool contract. Also the total contract is 4,443,669 and not as required 6,000.00, and does not meet the financial technical requirements. EO Al Trade lacks similar projects and references and the manager did not prove that a contract of the same nature was completed. It has also submitted contracts with private EO without proving bank transactions. The same value for EO Thesari that misses references and contracts as well as project manager for pool realization. Therefore we ask from the PRB to properly examine our complaint and make a meritorious decision with the aim of preventing the discriminating and favoring the companies that have been done in this activity, and CA to return for re-evaluation and to clearly assess the dilemmas raised and respect the provisions of the LPP.

6 Member of the review panel asked the representative of the EO Kag Asphal that the difference between you and the EO recommended is 1 million euro, and you as a company have not realized a contract for the pool. In response, Mr. Ferati declared: Having in mind that the construction of the swimming pool should be according to European standards, we are the only company with a German company that has great experience in the construction of swimming pools, and we are within the budget forecast. While we as a company we really did not do pool work. Following the speech was given to the representative of the EO Rafi shpk Mr. Bytyqi who stated: We as complaining EO we remain at all points of the complaint as we have argued with evidence. EO winner Çlirimi irresponsible, we as complaining EO did not agree with CA, and with the opinion of the expert as it is in opposition with the LPP, who are insisting to validate the contract and reference between EO Çlirimi and Mr. Sejdi Rexhaj which is a fictitious contract invalid and unrealized by EO Çlirimi and is not in the list of projects of EO Winner. It is inconsistent with the decision of the PRB, no.378 / 17, since according to the decision cite it is ascertained that CA is obliged in accordance with article 72 of the LPP, to request additional clarification and to certify the contract also, during the reevaluation it is obligated the CA to request additional explanation for the above contract, to provide the bank transactions for the above mentioned project with the amount of 1,942, stated. According to the access of the documents as complaining EO we have ascertained that EO winner has transactions with 887,869E, which does not cover the contract amount and reference 1,942,589.85E, which means there is evidence for only 45% of the contract value which should be invalid because it did not testify with bank transactions as required by decision 378/17. Therefore we as complaining EO have requested pursuant to article 72 of the LPP, and 39 of OGPP, from CA-MA of Prizren also request from the PRB to verify or authorize CA-MA of Prizren that these bank transactions between EO Çlirimi and private person Sejdi Rexhaj to be verified at TAK whether they were invoiced as a sale by EO Winner Çlirimi to the physical person for the realization of the contract the construction of swimming pools, or as a sale for any other business activity or nonbusiness, etc. EO winner has offered to the payments received by the one who has received money in cash for the contract execution in the amount of 389, Euros, also sent remittances for compensation with machinery in value 174,900. Euros which these documents are in violation of the LPP and the decision of the PRB 378/17, as according to the decision are required bank transactions. Therefore these documents are void and fictitious according to the decision of the PRB. Delivery notes and payment notes are fictitious and invalid documents because, according to TAK laws, for each purchase and sale over the value of 500 E, payments are to be made through bank transactions. Also, compensation is not recognized by TAK, but billing is required as a sale and purchase. Which we as EO ask from the PRB to verify or authorize MA of Prizren to verify to TAK whether they have been billed as a sale from the winning EO to the private person for the performance of the contract construction of swimming pools. Our request for verification by TAK is since Article 7 of the contract between the parties stipulates that after the execution of the works to be made billing for payment.

7 Article 72 of the LPP says the documents must be easily verifiable, so the only authority that can authenticate these documents - bank transactions, payment notes, deliveries presented by the winning EO is TAK. Therefore, we as complaining EO seek to verify otherwise we will continue to ACA, court and economic crimes. PRB, has legal basis under the LPP, to verify and authorize CAs to verify any suspicions of the alleged claims by the complaining parties that they are fictitious and to prove this we offer the decision of OSHP / 15, which has been authorized by MA Peja to undertake verification by TAK, contracts and references submitted by EO. EO Çlirimi has not proved that it has completed a contract of the same nature for the pool. The second EO Olti trasing according to the document access did not provide evidence that they performed the construction work of the pool and did not provide evidence with contracts and technical admission or references for the 6 million euro turnover value. The project manager lacks the experience of pool construction contract as the project reference of the project manager is not included in the list of company projects. There is also a lack of work experience for 5 years with job references, because in the references of Olti Trasing there is no information as to when it started, also the reference of Pro Ing is work experience from to EO Al Trade irresponsible has not provided evidence for the same construction contract of the pool. EO Al Trade has service contract with designated person Fadil Balaj Project manager with profession 1 Hydro technique engineer, whereas CA has requested in point 2 point A Civil Engineer - Constructional construction while in point B it is required that within the staff should be an engineer of electronics, machinery and Hydro. References issued by Arda Rei to Mr. Balaj are dated , according to the request of the person, whereas according to the reference shows that Mr. Balaj has worked in Arda Rei from July 2000 to April Also, according to the reference, the Project Building of Swimming Pool in Gërmia was implemented by the company , and this reference is fictitious and invalid since it cannot be a reference of 2017 for the projects realized Also the same person in this period worked in three or four companies at the same time which is impossible. EO Rafi accountable and this has confirmed the review expert as well the CA, in evaluation and re-evaluation. We have proof of the contract, the request for technical acceptance, the confirmation that the works were completed in 2016, the technical acceptance report, a reference that proves the photos and photos of the realization of the project and the only swimming pool in Kosova funded by the EU office in Kosova. Also the project manager has references for the realization of this contract. The President of the panel ascertained that the representative of the EO Rafi Mr. Bytyqi is not employed by EO Rafi Shpk and at the same time is not a lawyer. Following the speech was given to the representative of the CA, Mr. Osmankaj stated: I have a request that to the complaining EO the PRB, to be a little more strict, especially for the security of the complaint not to tolerate where it is likely to be tolerated and do not return the insurance of complaint where the conditions are not to return. The reason is that he is leaving an opinion and their glad that they can make a complaint and whether is doing something good and not, we lose nothing.

8 This case was reviewed once, returned for re-evaluation with the sole purpose of verifying that the EO Çlirimi has built or did not pool Dafina, owned by Mr. Sejdiu. According to the decision are required proof that this company has built this pool, we went out on the ground and have proved that the pool exists and is built by EO Çlirimi. The request in the tender dossier was evidence of similar work carried out in the last three years, evidence was not required in the file to be argued either by bank transactions, and any form other than with contract and reference. Since it was contested that EO Çlirimi has built or not the pool mentioned in the contract, CA has done this verification and we came to the conclusion that this pool was built by EO Çlirimi. The form on how the payments are done are proved by the EO while we are not the ones who verify whether they were regular forms of payments or not. For CA, I also believe for PRB, it is important that this pool with this value was built by EO that we have proposed for contract. All other complaining claims of the EO have been rightly rejected as being ungrounded complaining claims. We remain by the decision to award this EO with the contract and we also agreed with the opinion of the expert on this case. Following the speech was given to the review expert Mr. Basha who stated: Following the decision 378/17 of the PRB, CA, in compliance with this decision requested from EO Çlirimi bank transactions whether he has realized the payments for the contract in question. In response EO Çlirimi has submitted detailed bank turnover regarding the transfers made by the pool contractor and EO Çlirimi. In total it is over 1.1 million, which means it is not the total of the contract. Regarding the other complaining claims of the two complaining EO are the claims related to the offer of Olti Trasing, which has no contract under construction of the swimming pool. Complaining claims regarding the offer of EO Thesari, Al Trad are unstable. Based on the main criterion for contract award - the lowest price, I have proposed to approve the decision of the CA. In the final words, the representative of the EO Kag Asphalt Mr.Ferati stated: we propose to the panel to approve our complaint and the case to be returned for reevaluation. In the final words the representative of the EO Rafii Mr. Bytyqi stated: According to the access to documents bank transactions of the EO Winner are 887,869E, as well the criterion of dossier is the accountable EO, cheaper price in accordance with LPP. Our final requirement is for the PRB to authorize the CA to verify bank transactions, payment notes, EO deliveries and Mr. Sjedi Rexhaj whether the EO bill has been billed for the construction of the swimming pool contract. In the final words the representative of the CA stated: We stand by the decision of the CA and we propose to the review panel to validate the decision of the CA as grounded by rejecting the complaints of the complaining EO as ungrounded and if there are grounds for the security of the complaint of the complaining EO is forfeited. In the final words, the review expert Mr. Basha stated: I stand by the expertise's report and the findings given in the report.

9 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, discussion and screening of the evidence as a whole during the hearing session of the main review regarding the complaining claim of the complaining EO regarding the bid of the EO Olti Trasing, concretely regarding that the project manager has no experience and that there are no contracts and references, clarifies that this complaining claim is sustainable due to the fact that in the offer of EO Olti Trasing, there is no contract in the construction of swimming pools, the only contract closest to the nature of this procurement activity is the construction of tanning facilities. Also regarding the experience of the project manager the review panel clarifies the same economic operator on the offer has submitted a reference to which it is said to have managed the construction of the swimming pool in the residential building I and II of Beni Dona and attached the photographs, based on these evidences it turns out that the aforementioned economic operator did not fulfill the tender dossier's request regarding the contracts and references of the project nature. Regarding the complaining claim of the complaining EO Kag Asphalt that EO Rafi II is irresponsible with the justification that there are no contracts and similar references to this project and that it did not provide evidence that the project manager managed a pool contract, the review panel in relation to this complaining claim clarifies that it is ungrounded for the fact that the clarification given by the review expert was verified by the fact that in the offer is a reference issued by Louise Berger for project manager Milot Muhaxheri, who has managed the project in construction of a swimming pool and also in the original offer there is also contract and reference for the construction of the swimming pool. Also regarding the complaining claim of the complaining EO, that EO Al Trade, which was declared as unsuccessful EO, has no contract and reference in the construction of the swimming pool and that it has submitted a contract with private economic operator without banking transactions and also complaining claim that the manager does not have the required evidence as per the tender dossier, the review panel evaluates that these complaining claims are unstable due to the fact that the project manager has provided evidence in the original offer as well as the contract and reference itself the complainant acknowledges that he has an offer but insists there are no bank transactions, but a request regarding bank transactions is not found in the tender dossier and the contract notice. Regarding the complaining claim of the complaining EO Kag Asphalt that EO Thesari, there is no contract and reference for similar project, the review panel clarifies that EO Thesari contract and reference has submitted in original bid and is in the name of member of the consortium EO Al Asfalt, this issue is foreseen in paragraph 4 of the article 71 of the LPP, which writes If a tender is submitted by a group of economic operators, each group member is obliged to testify or confirm in accordance with Article 67 of this Law, that it is not excluded from participation in the procurement activity according to Article 65 of this Law. Any request made by a contracting authority under Articles 66.2, 68 and 69 of this Law shall apply only to the group as a whole and not to the individual members of the group. Regarding the complaining claim of the complaining EO that the decision with no. 378/17, the review panel ascertains and evaluates that this complaining claim is ungrounded, for the fact that, according to the instructions given in the decision of the review panel, the contracting authority has returned for re-evaluation this procurement

10 activity and in order to verify if he did this project contract with private person Sejdi Rexhaj, it was obliged the contracting authority to request additional clarification, even bank turnover for this project even though no evidence of this dossier was filed, while during the clarification, EO recommended for contract has submitted evidence showing bank transactions between contracting parties for the contract number 001/14C, which is understood and clarified that EO Çlirimi has completed the project for which there was dilemma. Review panel on this issue concludes and evaluates that other evidence provided by EO recommended for contract are according to the request of the tender dossier, but the fact that this contract was related to a private person, the review panel with the decision with no. 378/17, requested the verification of this contract, respectively requested to verify whether payments were made through bank transactions, which as mentioned above has proved EO recommended for contract and at the same time the review panel evaluates that the Contracting authority has respected article 60 of the LPP for the fact that he has recommended the cheaper bid - which was also the main criterion for contract award. Review panel ascertains that the examination, evaluation and comparison of the tenders was done in accordance with article 59 of the LPP and at the same time was also respected the main criterion for contract award, which was the accountable tender with the lowest price, conform article 60 of the LPP. The Review Panel clarifies that the contracting authorities are obliged to ensure that public funds and public resources are used in the most economical way, while taking into consideration the purpose and the procurement case as it is foreseen in article 6 of the LPP, while the contracting authority in this case has acted in conformity with this Article. Also review panel clarifies that contracting authority has also considered Article 1 of the LPP, as it is known that the purpose of this law is to provide the most efficient, transparent and fairest way of using public funds, public resources and all funds and other sources of contracting authorities in Kosova. Review panel conform explanation mentioned above as well conform article 117 of the LPP, 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 Contracting authority 1x1 Complaining economic operators 1x1 Archive of the PRB 1x1 For publication on the website of the PRB.