PROCUREMENT REVIEW PANEL

Transcription

1 P.SH 36/12 37/12 PROCUREMENT REVIEW PANEL, appointed by the President Pursuant to the Article 105 point 1 and 2 and article 106 of the Law on Public Procurement in Kosova no.04/l- 042, composed of Mr. Hysni Hoxha-President, Mr.Ekrem Salihu-referent and Mr. Osman Kryeziu-member, deciding according to the complaint lodged from the EO K.S Dardani sh.a with residence in Prishtina and EO Sigal Uniqa Group Austria sh.a with residence in Prishtina, regarding the procurement activity Health Insurance Benefits, with procurement no. PTK/11/405/211, initiated from the contracting authority/post and Telecommunication of Kosova sh.a, on the has issued the following: D E C I S I O N ON THE APPROVAL OF THE COMPLAINT OF THE EO: DARDANIA PRISHTINA NO. 36/12, OF THE DATE: , AS GROUNDED AND ON THE REFUSAL OF THE COMPLAINT OF THE EO SIGAL UNIQA GROUP AUSTRIA PRISHTINA NO.37/12 OF THE DATE AS UNGROUNDED I. Approved, as grounded the complaint of the EO KS Dardania sh.a from Prishtina, regarding the procurement activity Health Insurance Benefits, with procurement no. PTK/11/405/211, performed from the contracting authority/ptk. II. Refused, as grounded the complaint of the EO Sigal Uniqa Group Austria sh.a from Prishtina, against the notification for contract award regarding the procurement activity Health Insurance Benefits, performed from the contracting authority PTK. III. Cancelled, decision of the contracting authority/post and Telecommunication of Kosova, for contract award, for the procurement activity Health Insurance Benefits, with procurement no. PTK/11/405/211, and the case is returned 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. IV. Non-compliance with this decision shall oblige the review panel conform legal provisions of the article 131 of the LPP no.04/l-042 to take actions against contracting authority, that doesn t respect the decision of the Review Panel provided for in this Law. V. Complaining economic operator KS Dardania sh.a, conform article 118 point 3 it is returned the insurance fee of the complaint in the sum of Euros ( five hundred Euros).

2 VI. Since the complaining claims of the complaining Economic operator Sigal Uniqa Group Austria sh.a are ungrounded, it is confiscated the insurance fee of the complaint in the sum of Euro (five hundred Euros). REASONING Economic operator KS Dardani sh.a from Prishtina and EO Sigal Uniqa Group Austria sh.a from Prishtina, as a dissatisfied party on the and lodged a complaint with protocol no. 36/12 and 37/12, against the notification for contract award to EO Sigma Insurance Group Prishtina, regarding the procurement activity Health Insurance Benefits, initiated by the contracting authority/post and Telecommunication of Kosova. EO KS Dardania sh.a claims that contracting authority has done essential violations of the provisions of the LPP no.04/l-042 as are: Violation of article 6 of the LPP- Economy and Efficiency; Violation of article 7 of the LPP- Equality in Treatment/ No discrimination; Violation of article 27 of the LPP- Tender dossier; Violation of the article 51 of the LPP- Notification for selection criterions; Violation of article 59 of the LPP Examination, evaluation and comparison of the tenders. EO Sigal Uniqa Group Austria sh.a, claims that contracting authority has done essential violations of the provisions of the LPP no.04/l-042 as are: Violation of the article 54 of the LPP- Notification of candidates and eliminated tenders. Procurement Review Body after receipt of the complaint, based on the article 113 and 114 of the LPP no.04/l-042, has authorized the review expert to review the procurement activity Health Insurance Benefits, as well the validity of all complaining claims of the complaining party EO Dardania sh.a from Prishtina and EO Sigal Uniqa Group Austria sh.a from Prishtina. Review expert in the expertise s report of the , has ascertained that contracting authority during the offer s evaluation process in this procurement activity has violated article 59 of the LPP, therefore proposes the review panel to order the CA that the procurement activity to return for re-evaluation. Contracting authority-ptk, through memo with protocol no.36/12; 37/12 of the has notified the review panel that doesn t agree with the expertise s report of the review expert of the

3 Complaining economic operator Sigal Uniqa Group Austria sh.a through memo of the has notified the review panel, that doesn t agree with the proposal for elimination of their company for the fact that, the same have applied two prices as results in the report of the review expert, where emphasizes again that has offered only one price. During the session of the main review on the in which were present: members of the review panel, representative of the EO K.S Dardania sh.a Mr. Xhevat Balaj, representative of the EO Sigal Uniqa Group Austria sh.a Mr. Sofo Limaj, representative of the CA Mr. Fatmir Gjonbalaj, as well review expert, were presented proof while doing the checking and analyzing the documentary of the procurement activity which is composed from: authorization of this activity, notification for contract, record on the offer s opening, decision on establishment of the bids evaluation commission, evaluation report of the bids, the answer of the complaining EO Sigal Uniqa Group Austria sh.a as well the answer of the CA on the report of the review expert. In the continuation President of the review panel gave the speech to the representative of the EO K.S Dardania sh.a Mr. Balaj who stated: We remain by the complaint lodged, and in the complaint we have elaborated the issue that there is no legal basis that Dardania didn t fulfill criterions of the tender dossier of the CA. In the continuation Mr. Balaj said that we were called in the legal provisions regarding the TVSh in the Law no.03/l-16 for the Taxes on the added value and that in the article 28 of this Law, as well in the other act of the administrative manual no. 01/2004: of the article 4 of this manual, as well UNMIK regulation no.2001/17- changes of regulation 2001/2011 for the Taxes on the added value. In the end representative of the complaining EO added that us as EO were eliminated and regarding the age, where in our bid includes until the age 65 for the insured as it was required in the tender dossier. President of the review panel in the continuation of the session gave the speech to the representative of the complaining EO Sigal Uniqa Group Austria : Mr. Limaj who emphasized: We hope with responsibility and seriousness in accordance with requirements of the tender dossier we have prepared the necessary documents. In the time of bids opening from the admission commission of CA-PTK, as it seems our envelope was the last and it was done a lapsus while reading two prices at the same time; one for the family package and the other is the total value for the PTK staff. But this value is curtailed because us as EO we have offered for only one total value per unit of Euros which includes insurance also of the workers of and family of the staff of the PTK.

4 Representative of the complaining EO said in the continuation that review expert claims that we have given two prices-value, which aren t equal. In the material sent to PRB we have given two explanations that we have offered one price which is Euros for family package, and the other value that the experts calls it as second price which is Euros, which from the commission of PTK it was read partly as a value Euros, that value is a total value that we offer for all PTK workers which is Euros, which a price with TVSH for one worker multiplied PTK workers is equal with Euros, the expert called this as two different prices. President of the review panel gave the speech to the CA Mr. Gjonbalaj who stated: as a representative of the CA for this procurement activity I remain by the memos which are a part of tender dossier, evaluation report and comments given in the answer of the expertise of the expert. Representative of the CA added that regarding the price of the EO Sigal I agree with review expert that this EO gave two (2) different prices, at the columns where it is required the total price for all required units they presented a price that covers only one worker. As well the number of workers in the dossier was the indicative number of the PTK workers, this is not an exact number. Whereas regarding the allegations of the complaining EO KS Dardania representative of the CA said that regarding TVSh we took explanation from TAK explaining decision, as well we have accepted one opinion-explanation from PPRC regarding the explanation of the Taxes on the added value. With purpose of verifying the factual situation, President of the review panel asked the representative of the CA Mr. Gjonbalaj on the occasion of evaluation of this procurement activity had into account the Law for Taxes on the added value 03/L-146 and that article 28 of this Law as well Administrative manual of MF no. 1/2004 on implementation of TVSH article 4 of this manual. Mr. Gjonbalaj emphasized: being in trouble how to make this evaluation in the moment when we had bids from different EO, which have applied some respectively the outside companies with TVSH and some EO without TVSH, then we have referred TAK for advices how to act further, also we have taken into account an immediate of the PPRC and we have made it fit to the case. Review expert during the session regarding the allegation of the complaining EO emphasized: regarding the EO Sigal in the beginning of reviewing the case I have noticed that have offered two prices, one price was offered in page no of the tender dossier, point 3 of the form of the tender in value of ,60 Euros, whereas the other price was given in the page of the financial bid part two- description of prices in a value of Euros, from the public opening has had complaints at the EO on how can a bidder offer two (2) prices which things are emphasized also in the expertise. Also EO Sigal was eliminated because didn t fulfill the adaptability requirements in the administrative and technical aspect for ex. preserves the right in termination of the contract if the general conditions given from you aren t respected (exceeds the article 16 of the contract-termination of contract of the provider of the services) as well 8 other points described in the notification for elimination.

5 Review expert regarding the complaint of the complaining EO Dardania said that regarding the price for TVSH I hear now that CA has an explaining decision from TAK, which amazingly was issued two days before notification for elimination of EO. Regarding the other requirements of elimination from the administrative-technical aspect in the memos of the case I have noticed that EO Dardania has stamped and signed technical specification required by CA in the tender dossier page no.21 and 22, but CA the elimination has done based on some other memos that were offered by EO itself, as are draft contract where most of them weren t required in the technical specification of the tender dossier, this doesn t break a deal and doesn t interrupt in the competences of decision-making of evaluation of the CA, but in the contrary we are dealing with a guidance on how can it be done a contract. Regarding the question of the President of the review panel did the TVSH affect in lining up the bidders for this procurement activity, review expert said that application of the TVSH didn t affect in the final rankings of the EO, here it was caused an uncertainty which is worth to mention that three (3) Kosovar companies : EO Dardania, EO Ilirija and EO Siguria have offered without TVSH, whereas three (3) other outside EO have applied with TVSH. Regarding the allegation of the complaining EO Dardania sh.a that CA has violated article 6 of the LPP, review panel evaluates that contracting authority must respect general provisions of LPP regarding the use of tools in the most economical and efficient way. Regarding allegation of the complaining EO Dardania sh.a, that CA has violated article 59 of the LPP, review panel based on the findings of the review expert, explanation given during the hearing session, ascertains that allegation of the complaining EO is grounded for the fact that from complaining EO the prices were offered according to article 28 of the Law no. 03/L-146 for the Taxes on the added value, article 4 of the Administrative Manual no. 01/2004, as well has signed and stamped the technical specification, financial bid at the description of prices, draft contract as it was required from CA in the tender dossier. Regarding the allegation of the complaining EO Sigal Uniqa Group Austria sh.a, that contracting authority has violated article 54 of the LPP, review panel based on the explanation given in the hearing session from the review expert, ascertains that the claim of the complaining EO is ungrounded for the fact that economic operators participants in a procurement activity can t apply with two (2) different prices as it is the concrete case, but only with one price which is emphasized in the form of the tender and in the prior-measure and prior-calculation a price which must be identical.

6 Review panel after reviewing the memos of the case, evaluation report of the evaluation commission, ascertainments mentioned in the expertise of the review expert, reviewing the complaining claims lodged in the complaints, statement of the representative of the EO KS Dardania sh.a, representative of the EO Sigal Uniqa Group Austria, representative of the CA, as well explanation given from the review expert in the hearing session, ascertained that CA during the offer s evaluation process in this procurement activity didn t respect article 59 of the LPP. Review panel based on that what was said above, evaluated that the complaint of the EO Dardania sh.a is grounded whereas the complaint of EO Sigal Uniqa Group Austria sh.a is ungrounded, hence 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 in front of the Supreme Court of Kosovo, within 30 days after the receipt of this decision. Chairman of the Review Panel Hysni Hoxha