P.SH 110/17 116/17 PROCUREMENT REVIEW PANEL, appointed by the President Pursuant to the article 105 paragraph 2, point 2.16, article 106, article 131 related to article 25 paragraph 9 of the Law no.04/l-042 for Public Procurement of the Republic 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, as well article 26 paragraph 1 of the Rules of Procedure, composed of: Mr. Tefik Sylejmani- President, Mr. Goran Milenković referent and Mr. Blerim Dina member, deciding on the complaint with protocol no. 110/17 lodged by the economic operator N.T.P ASFALTI with residence in Peja, and complaint with no.116/17, lodged by economic operator LIKA TRADE sh.p.k with residence in Deçan, regarding with the procurement activity with title Summer maintenance of roads in Deçan, with procurement no.631/17/277/521, announced from Contracting authority- Municipality of Deçan, on the hearing session on the 24 of May 2017 has issued this: DECISION I. Approved, as partly grounded the complaint of the economic operator NTP ASFALTI with residence in Peja, with protocol no.110/17, regarding with the procurement activity with title Summer maintenance of roads in Deçan, with procurement no.631/17/277/521, announced from Contracting authority- Municipality of Deçan. II. III. IV. Approved, as grounded the complaint of the economic operator LIKA TRADE sh.p.k with residence in Deçan, with protocol no.116/17, regarding with the procurement activity with title Summer maintenance of roads in Deçan, with procurement no.631/17/277/521, announced from Contracting authority- Municipality of Deçan. Cancelled the decision of the Contracting authority- Municipality of Deçan, notification for cancellation of the procurement activity with title: Summer maintenance of roads in Deçan, with procurement no.631/17/277/521, and the case is returned for re-evaluation. Contracting authority within a 10 day deadline, must notify the review panel in written form of all actions undertaken with regard to this procurement. V. Non-compliance with this decision obliges the Review Panel in accordance with the legal provisions of article 131 of the LPP. 04 / L-042 to take actions against contracting authority, that does not respect the decision of the Review Panel provided for in this law. VI. Complaining economic operator N.T.P ASFALTI with residence in Peja, and EO LIKA TRADE sh.p.k with residence in Deçan, conform article 118 point 3, it is returned the insurance fee of the complaint.
VII. Ordered complaining EO that in accordance with article 36 paragraph 5 of the Rules of Procedure of the PRB, within sixty (60) days to request a refund of insurance complaint, otherwise you become seizure of deposit and these vehicles pass budget of the Republic of Kosova. REASONING Contracting authority-municipality of Deçan, on the 22 of February 2017, has published a Contract Notice, regarding with the procurement activity with the title Summer maintenance of roads in Deçan, with procurement no. 631/17/277/521. price. As a criterion for contract award was the most responsive tender with the lowest For this procurement activity have been bidding 7 (seven) economic operators, where according to the offer s evaluation commission all economic operators that have applied for in the procurement activity with the title Summer maintenance of roads in Deçan, fulfilled the selection criterions required in the tender dossier and in the contract notice. Therefore, the bid s evaluation commission recommends the signing of the contract for the project Summer maintenance of roads in Deçan, with EO N.T.N. ASFALTI shpk from Peja. The financial offer for this project is 369, 930.00. Meanwhile after the announcement of the tender winner (contract award notice) we were informed that the financial means destined for this project have been withdrawn from the budget of the Municipality of Deçan by the Ministry of Finance from Economic Code 31230. For this we have a written notice from Treasury. Following this notification by the Treasury for the withdrawal of financial assets from other projects as obligations carried forward from the previous year (2016), in consultation with the PPRC, it was decided to cancel the procurement activity. Contracting authority on the 03 of April 2017 has published the notification for cancellation of the procurement activity. Against the decision for refusal of the request for reviewing, economic operator N.N. ASFALTI with residence in Peja and economic operator LIKA TRADE with residence in Deçan, within the legal deadline have lodged a complaint in PRB. Points of Complaint: Complaining economic operator NN ASFALTI with residence in Peja, claims that contracting authority of the Municipality of Deçan, on the occasion of the cancellation of the procurement activity has done violation of article 7, article 60, article 62 and article 108 / A of the LPP.
Complaining economic operator LIKA TRADE sh.p.k. with residence in Deçan, claims that contracting authority - Municipality of Deçan, with the case of the cancellation of the procurement activity has violated article 59 and article 60 of the LPP. Complaints of economic operators are timely and submitted by the competent persons. The complaint of the EO N.N ASFALTI with residence in Peja is partly grounded, while the complaint of EO LIKA TRADE with residence in Deçan is grounded. Procurement Review Body after receipt of the complaint, based on the article 113 and 114 of the Law no.04/l-042 on Public Procurement of the Republic of Kosova, as amended and supplemented by law no.04/l-237, Law no.05/l-068 and Law no.05/l-092, on the 24 of April 2017, has authorized the review expert to review the validity of all complaining claims of the complaining party. Review expert, on the 04 of May 2017, submits to the review panel the expertise's report, where in the report regarding the complaining claim of the complaining EO N.T.N. ASFALTI shpk, where it is stated that contracting authority has violated article 62 of the LPP, on the occasion of the cancellation of the procurement activity, explains that the allegation of the complaining economic operator is true for the fact that if the value foreseen in Statement of Need and Disposal of Assets that is 490,000.00 and the amount withdrawn from the Treasury that is 100,000.00 for the project in question as well as the price offered by the complaining EO that is 369,930.00, it results that the price offered by the economic operator the complainant is within the estimated value of the contracting authority for this procurement activity, even if 100,000.00 has been withdrawn from the Treasury Department. Review expert clarifies that contracting authority on the occasion of cancellation of the procurement activity has acted in contradiction with article 62 paragraph 2 of the LPP, stating among other things states: the contracting authority may end that procurement activity which will not result in the contract award only for one of the reasons given in paragraphs 2.1 and 2.2. The complaining claim of the complaining economic operator ASFALTI sh.p.k with residence in Peja, where it is stated that contracting authority has violated article 108 / A of the LPP, the review expert clarifies that the complaining claim of the complaining economic operator is true, because the contracting authority on the date 07 of April 2017, returns the answer to the complaining EO, in which the CA submits only the reasons for cancellation of the procurement activity, while it does not respond to the complaining claims of the complaining EO. Review expert clarifies that in this case contracting authority, on the occasion of the reviewing of the complaint of the complaining economic operator did not respect article 108 / A paragraph 2 of the LPP, because based on the above article and article 8.1 and 8.2 of the LPP, the Regulation for submitting a request for reviewing at the Contracting Authorities, filing complaints by the PRB and the value of the fees for complaints, the responsible procurement official is obliged to review the complaining claims of the complaining EO and to make a decision which should be justified regarding
the refusal or approval of the request for reviewing, and not as it acted in this case the contracting authority with the reply dated 07 of April 2017. The complaining claim of the complaining EO LIKA TRADE sh.p.k with residence in Deçan where it says: EO Asfalti sh.p.k does not meet point 9.1 and 9.2 of the TDS, contract and reference for similar services, which is required to be in a minimum value of 600,000.00, review expert clarifies that contracting authority at the requirements regarding the technical and professional ability regarding the request specified in Article 9.1 of the TDS has specified as documentary evidence to be provided: List of projects carried out in the last three years (2013, 2014, 2015) for Work - the same with the copies of the references attached to the contracts) in the last 3 years in the minimum value of 600,000.00, specifying: - the works involved, the amount of the contract. Whereas, EO Asfalti sh.p.k, regarding the above mentioned request as evidence has provided the list of works carried out during 2014,2015 and 2016, attached contracts, technical admission and references. However, in the above mentioned list there is only one project of the same nature as the procurement activity, performed by EO N.N.T V-Shala & Asfalti sh.p.k, attached contract with the Municipality of Peja in the amount of 72,720.00, as well as technical acceptance of works, while all other projects are asphalting or renovating roads. The complaining claim of the complaining EO LIKA TRADE sh.p.k. with residence in Deçan where among other things it is stated: EO RSM Compani sh.p.k does not meet the request of the TDS on the decision of appointment of the Head of Workshop. Didn t make a decision on the appointment of the Leader of the workshop. The review expert clarifies that contracting authority in point 9.1 and 9.2 of the TDS has requested: Engineer in the workshop and database holder. One (1) Graduated Construction Engineer or Bachelor two years of post-graduate work experience. Documentary evidence: A certified diploma from the original, their CVs that demonstrate their experience in managing the same projects (minimum two- 2) projects and contracts for notarized work relations, whereas the economic operator RSM Compani sh.p.k, as evidence provided the list of staff available for the project Summer maintenance of roads in Deçan with procurement no. 631/17/005/521, which includes the name and surname Sefedin Shala - Eng, Civil Engineer-Engineer with 11 years of work experience, attached notarized diploma, notarized work contract and CV. Regarding what is stated: In the CV of the Head of workshop it is clearly seen that he does not have the necessary and required experience in leading the same projects (minimum 2 projects), the review expert clarifies that the operator's complaining claim is grounded, for the reason that in the CV of Mr. Sefedin Shala, does not appear to have managed the same projects, as required by the TDS in article 9.1 and 9.2. The complaining claim of the complaining EO LIKA TRADE sh.p.k with residence in Deçan, where it says: EO RSM Compani sh.p.k. does not meet the requirements of the TDS, equipment and mechanization for the realization of works. Who did not submit as required the Vehicle Registration Cards and DUD Customs Notarized by the Notary, the review expert qualifies as grounded because the economic operator RSM Compani sh.p.k. has provided evidence of vehicle registration and customs ADRs which are not notarized, whereas in the TDS, the requirements on technical and professional capacity in point 9.1 and 9.2 are required: Equipment - Must be submitted as
evidence: Vehicle booklets or customs tolls for vehicles that do not have a registration booklet (notarized by a notary). Devices must be owned or leased for use in this project. The complaining claim of the complaining EO LIKA TRADE sh.p.k with residence in Deçan, where it says: EO Arfa sh.p.k does not meet the request of the TDS, (20 employees), did not present employment contracts. Also can be clearly seen from the company's payroll that this company has only 17 employees, review expert qualifies as grounded on the reason that economic operator ARFA sh.p.k. Regarding the request specified in article 9.1 and 9.2 of the TDS, where it is required: 20 (twenty) employees, to submit employment contracts or employment engagement agreements, proof of payment list, as evidence provided by the payroll for the company for the year 2016-TAK, where there are 17 (seventeen) employees. Based on the above mentioned, the review expert thinks that contracting authority - Municipality of Deçan, on the annulment of the procurement activity with the title Summer maintenance of roads in Deçan, with procurement no. 631/17/277/521, did not fully respect the provisions of the LPP. Therefore, proposes to the review panel that the complaints of the complaining EO to be approved as grounded, and to annul the decision - notification for cancellation of the procurement activity of the 03 of April 2017, and return the case to Re-evaluation. Contracting authority - Municipality of Deçan, through written memo of the 08 of May 2017, notifies the review panel that does not agree with the opinion of the review expert given in the expertise's report of the 04 of May 2017, arguing that the cancellation of the concerned procurement activity is incompatible with the LPP and the Law on Public Financial Management. Complaining economic operator N.T.N. ASFALTI sh.p.k with residence in Peja, through written memo of the 08 of May 2017, notifies the review panel that agrees with the opinion of the review expert given in the expertise's report dated 04 of May 2017 as it does not agree with the complaining claims of the EO LIKA TRADE as complainant, and that the complaining claims of this economic operator are ungrounded and completely unjustified, therefore request from the review panel to oblige the contracting authority to proceed with the proceeding for contract award as recommended by the evaluation commission in this procurement activity. Complaining economic operator LIKA TRADE sh.p.k with residence in Deçan, through a written memo dated 08 of May 2017, notifies the review panel that agrees with the opinion of the review expert given in the expertise's report dated 04 of May 2017. On the occasion in front of this body were presented proof while doing the checking and analysis of the material of this procurement activity which consists of: from the authorization of this activity, the notification for qualification, the record on the bid's opening, the decision on the establishment of the evaluation commission of the bids, the evaluation report of the bids, the notification for cancellation of the procurement activity, the complaint of the complaining EO N.T.N ASFALTI sh.p.k with residence in Peja and the complaint of the complaining economic operator LIKA TRADE sh.p.k with residence in Deçan, report of the review expert dated 04 of May 2017, as well the memos of the contracting authority and complaining EO on the report of the review expert.
Review expert during the hearing session stated: the complaining claims as well as the answers to the complaining claims can be found in details in the expertise's report of the 04 of May 2017. At the end of the presentation the review expert stated: I remain entirely by the expertise's report and the findings and recommendations given in the report. The complaining claim of the complaining EO N.T.N. ASFALTI sh.p.k with residence in Peja, where it is stated that contracting authority did not respect article 7 and article 62 of the LPP, the review panel ascertains that there is a waiting list of the complaining operator, because if taken as a basis the value provided in the Declaration of Need and available assets that is 80,000.00, and the total price for 36 months of the approximate quantities offered by the complaining EO that is 53,186.01, it results that the price offered by the complaining operator does not exceed the estimated value of the contracting authority for this procurement activity. Therefore the review panel evaluates that contracting authority in case of cancellation of the procurement activity after the notification for contract award has acted in contradiction with article 62 paragraph 2 of the LPP, stating among other things: the contracting authority may terminate that procurement activity which will not result in the contract award for one of the reasons given in paragraphs 2.1 and 2.2. Complaining claim of the economic operator LIKA TRADE sh.p.k where it is stated that contracting authority has violated article 59 of the LPP, review panel ascertains that the complaining claim of the complaining economic operator is grounded for the fact that the bid s evaluation committee during the process of the evaluation did not respect the selection criteria specified in the tender dossier and the contract notice. The review panel after reviewing the memos of the case, the tender dossier, ascertainments mentioned in the expertise of the review expert, reviewing the complaining claims of the complaining economic operators, memo of the complaining EO N.T.N. ASFALTI sh.p.k, memo of the complaining economic operator LIKA TRADE sh.p.k, explanations given by the review expert during the hearing session, ascertained that contracting authority on the occasion of cancellation of the procurement activity with the title: Summer maintenance of roads in Deçan, with procurement no. 631/17/277/521, did not respect the provisions of the LPP. Therefore the review panel from the above mentioned evidence, in accordance with 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. Tefik Sylejmani