P.SH 346/11 353/11 354/11

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1 P.SH 346/11 353/11 354/11 PROCUREMENT REVIEW PANEL, appointed by the President Pursuant to the Article 105 point 1and 2 and 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 lodged from the EO Jehona sh.p.k with residence in Drenoc-Malishevë, complaint of the EO N.N.P Shkoza F07 & N.N Ndërtimi with residence in Prishtina and the complaint of the EO Kag Asphalt Company sh.p.k with residence in Krushë e Vogël-Prizren regarding the procurement activity Repairing of the regional road R-105, segment Klinë-Brojë, L=4.0 km with procurement no. MI/11/049/511, announced from the contracting authority/ministry of Infrastructure, on the has issued the following: D E C I S I O N ON THE APPROVAL OF THE COMPLAINT OF THE EO: JEHONA SH.P.K MALISHEVË, N.N.P SHKOZA F07 & NDËRTIMI PRISHTINË, KAG ASPHALT COMPANY PRIZREN, NO. 346/353/354/11, OF THE DATE: 04/10/11/11/2011, AS GROUNDED I. Approved, as grounded the complaint of the EO Jehona sh.p.k from Drenas- Malishevë, EO N.N.P Shkoza F07 & N.N Ndërtimi from Prishtina and EO Kag Asphalt Company sh.p.k from Krusha e Vogël-Prizren, regarding the procurement activity Repairing of the regional road R-105, segment Klinë-Brojë, L=4.0 km with procurement no. MI/11/049/511, announced from the contracting authority/ministry of Infrastructure. II. Cancelled, the decision of the contracting authority/ministry of Infrastructure, for contract award, for the procurement activity Repairing of the regional road R-105, segment Klinë-Brojë, L=4.0 km with procurement no. MI/11/049/511, and case returns for re-evaluation. 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. IV. Complaining economic operator Jehona sh.p.k, N.N.P. Shkoza F07& N.N. Ndërtimi dhe Kag Asphalt Company sh.p.k conform article 118 point 3, it is returned the insurance fee of the complaint in the sum of Euro (five hundred Euros)

2 REASONING Economic operators Jehona sh.p.k from Drenoc-Malisheva, OE N.N.P. Shkoza F07& N.N. Ndërtimi from Prishtina dhe OE Kag Asphalt Company sh.p.k from Krusha e vogël-prizreni, on the 04/10/ have lodged a complaint with protocol no.346/11; 353/11 and 354/11, against the notification for contract: OE Famis Co Suharekë, regarding the procurement activity Repairing of the regional road R- 105, segment Klinë-Brojë, L=4.0 km with procurement no. MI/11/049/511, initiated from the contracting authority/ministry of Infrastructure, Economic operator Jehona sh.p.k, claims that contracting authority has done essential violations of the provisions of the LPP no.03/l-241 as are: Violation of the article 59 point 3 of the LPP- in the justification of the CA it is said: it is missing the agreement signed for supply with asphalt, license of MTI of the company AHN is a copy. CA has done a violations because AHN Group sh.p.k is a provider with asphalt (it is not a part of the consortium group), as a consequence it is no need that the documents of the supplier to be original or certified according to LPP. Violation of the article 60 of the LPP Criterions for contract award. Economic operator Kag Asphalt Company sh.p.k, claims that contracting authority has done essential violations of the provisions of the LPP no.03/l-241 as are: Violation of the article 7 of the LPP- Equality in Treatment/No discrimination and Transparency; Violation of the article 6 of the LPP- Economy and Efficiency; Violation of the article 27 of the LPP- Tender dossier; Violation of the article 51 of the LPP- notification of the selection criterions; Violation of the article 56 of the LPP- General provisions on the selection of the participants and contract award; Violation of the article 59 of the LPP- examination, evaluation and comparison of the tenders; Violation of the article 60 of the LPP- Criterions for contract award. Economic operator N.N.P. Shkoza F07& N.N. Ndërtimi claims that contracting authority has done essential violations of the provisions of the LPP no.03/l- 241 as are: Violation of the article 7 of the LPP- Equality in Treatment/No discrimination and Transparency; Violation of the article 30.1 of the tender dossier, criterions of tender award, the accountable tender with the lowest price. Procurement Review body after receipt of the complaint, based on the article 113 and 114 of the LPP no.03/l-241, has authorized the review expert to review the procurement activity Repairing of the regional road R-105, segment Klinë-Brojë, L=4.0 km as well the validity of all complaining claims of the complaining party EO Jehona sh.p.k from

3 Drenoc-Malisheva, OE N.N.P. Shkoza F07& N.N. Ndërtimi from Prishtina dhe OE Kag Asphalt Company sh.p.k from Krusha e vogël-prizreni. Review expert in the expertise s report of the , has ascertained that CA during the performance of this procurement activity has committed violation of the article 59 and 60 of the LPP, therefore proposes the Review Panel to approve as grounded the complaints of the complaining EO and to order the CA that the procurement activity to return for re-evaluation. Contracting authority-ministry of Infrastructure, through memo with protocol no. 346/353/354/11 of the has notified the PRB that doesn t agree with the opinion and ascertainments of the review expert regarding this procurement activity and at the same time proposes the review panel to refuse the complaints of the complaining EO. Complaining EO Jehona sh.p.k through the memo with protocol no. 346/353/354/11 of the notified the review panel that agrees with opinion and ascertainments of the review expert given in the report of the As well EO Kag Asphalt Company sh.p.k through memo of the has notified the review panel that agrees with opinion and ascertainments of the review expert given in the report of the During the session of the main review on the , in which were present members of the review panel, representative of the CA Mr. Nebi Luzha, representative of the complaining EO Kag Asphalt Company sh.p.k Mr. Mentor Ferati, as well the review expert, were presented all proof while doing the checking and analyzing the documentary of the procurement activity which is composed of: authorization of the procurement activity, notification for contract, record on the offer s opening, decision on the establishment of the evaluation commission of the bids, report of the evaluation of the bids, notification for contract award, complaints of the complaining economic operators, report of the review expert, the answer of the CA on the report of the review expert, as well the answer of the complaining EO Jehona sh.p.k and EO Kag Asphalt Company sh.p.k on the report of the review expert. During the main session, President of the review panel gave the speech to the representative of the complaining EO Kag Asphalt Company sh.p.k Mr. Mentor Ferati who stated: From CA in the tender dossier was required that the manager of the project to be a graduated engineer of Construction with two (2) years experience after graduation, whereas the engineer Defrim Kabashi has around four (4) years working experience and also is a graduated engineer in the University of Construction in Prishtina with a diploma of UP. Representative of the complaining EO in the continuation said that regarding the claim of the CA that technical personnel it is not authorized, this thing in the tender dossier it wasn t required that the personnel must be authorized, but we have four graduated engineers: Faruk Polloshka, Arsim Rama, Shpëtim Kusari as well architect Kadrush Zherka. In the end representative of the complaining EO added that the company has sufficient references from MI, as well sufficient staff for implementation of this project, almost better than the company recommended for contract.

4 President of the review panel in the continuation of the session gave the speech to the representative of the CA Mr. Nebi Luzha, who emphasized: regarding the points mentioned that MI has violated provisions of the LPP, as it has mentioned the reporter of the case I must say that EO Kag Asphalt Company sh.p.k has it named the manager of the project, but has the level of Bachelor of Construction and it is in opposition with the point of the tender dossier where it is required graduated Engineer of Construction. Representative of the CA emphasized regarding the manager named from EO Kag Asphalt Company sh.p.k doesn t fulfill the criterion of working experience in the field of the construction of the roads, according to the requests of the tender dossier because it is required that the working experience to be issued from references of the employer and not from his personal CV or issued by the EO itself, as well also technical staff has it presented but didn t assign, that also this point is in opposition with the requests of the tender dossier. Whereas regarding EO Jehona shpk, representative of the CA Mr. Luzha emphasized that really the license from AHN for supply with asphalt has in the case, but this document it was a copy, we were supported in the fact that the value of the asphalt exceeds 20% of the contract value and for the reason this document we took it as important. Review expert emphasized: in the tender dossier at the requests on the technical and professional abilities is required: Manager of the project to be a graduated construction engineer with two working experience after graduation in the field of construction of the roads. In the memos of the case from EO Kag Asphalt Company sh.p.k it was offered the decision in written where it was assigned the manager of the project Defrim Kabashi. For this manager of the project was offered CV according to the requests of the CA, diploma, working experience, in the CV it is précised working experience of the manager of the project starting from the 4 month of the year 2006 until the date of the delivery of the tender. Regarding with the staff presented from EO Kag Asphalt Company sh.p.k, review expert said that in the tender dossier at the selection criterions it wasn t required anywhere assignment and authorization, in the tender dossier it was required: main technical personnel on graduated construction engineer constructive direction, one (1) working experience after graduation in the field of construction of the roads, where EO Kag Asphalt Company sh.p.k for this request has provided the list of the main technical personnel, among them has offered five (5) engineers and has fulfilled entirely the requests of the tender dossier. Regarding the EO N.N.P Shkoza F07 & N.N. Ndërtimi, in the continuation of the review expert emphasized from the CA was eliminated with reasoning that didn t offer the report on the financial condition for the year 2008, whereas this EO in the bid has offered the report of the audit for the year 2007, 2008, 2009 and As well EO Jehona was eliminated from CA with reasoning that Misses the agreement signed for the supply with asphalt License from MTI of the company AHN is a copy, from the CA in the tender dossier it wasn t required the agreement neither original nor a copy notarized. EO Jehona has offered an agreement of corporation of the for supply with asphalt and gravel from AHN Group shpk which has offered license with no.1222/2 from MTI, copy issued on the ,

5 also has offered as evidence permission for special activities no.248/kpmm 2011, to finish the separation including also the asphalt basis of the issued from KPMM, which it means that has fulfilled entirely requests of the tender dossier. Regarding the claim of the complaining EO where it is emphasized CA has violated article 7 of the LPP, Review Panel based on the findings of the review expert and explanations given in the main hearing session ascertained that complaining claims of the complaining EO are grounded for the fact that CA can t eliminate an economic operator from participation in a procurement activity or from the process of contract award based on one criterion or technical specification that it wasn t required in the tender dossier and notification for contract, as it has acted in the concrete case with complaining EO. Regarding the claims of the complaining EO that CA has violated article 59 of the LPP, review panel ascertains that the allegation of the complaining EO is grounded, because the evaluation commission of the CA during the offer s evaluation process didn t respect the selection criterions and the criterion for contract award determined in the notification for contract and in the tender dossier. Review panel after review of the memos of the case, evaluation report of the evaluation commission, ascertainments mentioned in the expertise of the review expert, reviewing the complaining claims of the complainants which were evaluated as grounded, statement of the representative of the CA, statement of the complaining EO Kag Asphalt Company sh.p.k, explanations given by the review expert during the hearing session about the fulfilling of the selection requirements of the tender dossier from the complaining EO, screening of each proof one by one, ascertained that contracting authority has violated article 59 and 60 of the LPP, during the offer s evaluation process according to complainants allegation. Review panel based on that what was said above, evaluated that the complaint of the EO Jehona sh.p.k, complaint of the EO Kag Asphalt Company sh.p.k and the complaint of the EO N.N.P Shkoza F07 & N.N Ndërtimi are 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

D E C I S I O N ON THE PARTLY APPROVAL OF THE COMPLAINT OF THE EO METAL PROJECT GJILAN, WITH NO.214/12 OF THE

D E C I S I O N ON THE PARTLY APPROVAL OF THE COMPLAINT OF THE EO METAL PROJECT GJILAN, WITH NO.214/12 OF THE P.SH 214/12 PROCUREMENT REVIEW PANEL, appointed by the President Pursuant to the Article 105 point1 and 2 as well article 106 of the Law on Public Procurement in Kosova no.04/l-042, composed of Mr. Hysni