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 Hoxha - President, Mr. Tefik Sylejmani- referent, Mr. Osman Kryeziu-member, deciding according to the complaint lodged from the EO N.T.P METAL PROJECT with residence in Gjilan, regarding the procurement activity Supply of chemicals Lot 1 and 2, with procurement no. KEKO/12/190/111, initiated from the contracting authority/kosova Energy Corporation, on the 12.09.2012 has issued the following: 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 01.08.2012 AS GROUNDED I. Approved, as partly grounded the complaint of the EO N.T.P METAL PROJECT from Gjilan, regarding the procurement activity Supply of chemicals Lot 1 and 2, with procurement no. KEKO/12/190/111, initiated from the contracting authority/kosova Energy Corporation. II. Cancelled, the decision of the contracting authority/kosova Energy Corporation, for contract award, for the procurement activity Supply of chemicals Lot 1 and 2, with procurement no. KEKO/12/190/111, and the case to return for reevaluation. Contracting authority within 15 days must notify in written the review panel for all undertaken measures regarding this procurement activity. III. 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. IV. Since the complaining claims of the complaining economic operator N.T.P METAL PROJECT, conform article 118 point 3 it is returned the insurance fee of the complaint in the sum of 500.00 Euros (five hundred Euros).
REASONING Economic operator N.T.P METAL PROJECT from Gjilan, as a dissatisfied party on the 01.08.2012 has lodged a complaint with protocol no.214/12, against the notification for contract award to EO Ripten Engineering Prishtina Lot 1 and EO Omnihem Pharm&Kromos Macedonia Lot 2, regarding the procurement activity Supply of chemicals Lot 1 and 2, initiated by the contracting authority/kosova Energy Corporation. Claiming that contracting authority has done the essential violation of the provisions of the LPP no.04/l-042 as are: Article 6 of the LPP- Economy and Efficiency Article 7 of the LPP Equality in Treatment/No discrimination From 2007 until today this tender is given only to the company Ripten Engineering, even though it is always more expensive, fit the criteria and tender from the beginning is set for Ripten. Procurement Review Body after receipt of the complaint, based in the article 113 and 114 of the LPP no. 04/L-042, has authorized the review expert to review the procurement activity Supply of chemicals Lot 1 and 2, as well the validity of all complaining claims of the complaining party- EO N.T.P METAL PROJECT from Gjilan. Review expert in his expertise s report of the 24.08.2012 has ascertained that CA 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 for two Lots to return for re-evaluation. Contracting authority-kec sh.a through memo with protocol nno.214/12 of the 28.08.2012, has notified the Review panel that doesn t agree with the opinion of the review expert given in the expertise s report of the 24.08.2012. Complaining EO N.T.P METAL PROJECT through memo with protocol no.214/12 of the 31.08.2012 has notified the Review panel with the opinion of the review expert given in the expertise s report of the 24.08.2012 During the session of the main review of the 12.09.2012, in which were present members of the review panel, representative of the complaining EO Mr. Agim Kanxheli, representative of the CA Mr. Muahmet Selmani, as well the review expert, were presented the evidence while doing the checking and analyzing the documentary of the procurement procedure which is composed from: authorization of the procurement activity, notification for contract, record on the offer s opening, decision on establishment of the bids evaluation commission, evaluation report of the bids, notification on the contract award, the complaint of the complaining EO, the report of the review expert, the answer of the CA and the complaining EO on the report of the review expert. In the continuation of the session President of the Review panel gave the speech to the representative of the complaining EO Mr. Kanxheli who stated:
The problem with chemicals dates from long time, at the moment when appears in KEC then begin to change the criteria by adjusting to this EO. From 2007 until now tenders go in favor of one EO. Representative of the complaining EO in the continuation said that they requested from CA to not require three (3) years contracts between the manufacturer and EO bidders, since nowhere is required such a thing, we give guarantee CA will supply for three (3) years. To us the manufacturer gives a contract of one (1) year and each year we renew the contract. Manufacturer produces about 100 or 200 tons per year and when we request a contract of three (3) years, manufacturer gives us a contract for only one (1) year. In the continuation representative of the complaining EO emphasized that the essence of work in the CA is that it is known he has to have a guarantee from EO and manufacturer that it will be supplied for three (3) years, we have also from the dealer of the manufacturer the guarantee that it will be supplied with chemicals for three (3) years. In fact we have a contract with a Rumanian dealer and not with the other dealer who is from Bulgaria, the biggest company in Balkan for chemicals Olthim with which we work from 2000, and since we don t have a guarantee of production for three (3) years we ensure the CA according to LPP that we leave the guarantee of 10% of the value of the insurance contract. Regarding the first point where it says that this manufacturer doesn t produce the acid requested by CA is ungrounded, I must confirm that according to the certificate of the 08.01.2012 Bureau Veritas here is included also chlorine sodichi Products where are included another two chemicals requested from CA, surprisingly chemists of CA to them it is not clear this description of certificate and for this reason they have eliminated us as not accountable. The only mistake in our bid is the insurance of the tender, the period of validity of 90 days and that it should have been 120 days. In the end representative of the complaining EO added that regarding the EO Ripten Engineering his supplier doesn t produce hydrochloric acid according to the standard requested from CA-KEC sh.a, and according to the response Bordsochem they do not produce hydrochloric acid with that standard. Also the certificate for producing acid BordsoChem expires on the 07.07.2012. President of the Review panel gave the speech to the representative of the CA Mr. Selmani who stated: KEC sh.a has announced the tender with speeded up procedure because of the re-tender. CA-KEC sh.a has accepted eight (8) bids, and after evaluation came to conclusion that only two (2) companies fulfill the requests of the tender dossier and those are : EO Omnihem Pharm&Kromos and EO Ripten Engineering. Based in the prices of their bids KEC sh.a announces a winner for Lot 1 EO Omnihem Pharm&Kromos and for Lot 2 EO Ripten Engineering. Representative of the CA emphasized that complaining EO is notified with reasons of elimination, where the reasons base were administrative and professional requests, where this EO miss the agreement with the manufacturer with which it is guaranteed the production for three (3) years as far as the tender and contract value that is from this tender. Also in the certificate ISO it is not mentioned that the manufacturer
Kimo Pleks Ca, do not dispute whether produces chemicals for this tender, but the certificate for which according to ISO doesn t have it included chemicals that we requested in the tender, this means that this manufacturer can produce these chemicals, but not with ISO standard. Complaining EO has offered validity of the bid of 90 days and not 120 days as it was required in the tender dossier. Regarding the documents presented in the session from complaining EO as a material evidence, requested to be verified their truth, we are speaking about the documents of the company BardsodChem of the 02 May 2012 and the company Kapachim that aren t dealing with authentic documents, because the same do not have signature one even no date or seal. In the end representative of the CA added that we didn t agree with the report of the review expert where it says that the group of EO Omnihem Pharm&Kromos didn t submit one statement as required in the tender dossier from EO each one by one or in a group together. We as a CA we requested at point 11.1 of the tender dossier In case that EO apply as a group, agreements and statements which fulfill. Consortium Omnihem Pharm&Kromos these statements has it included in a mutual agreement, the agreement of the date: 31.05.2012 signed by two members. Regarding the certificate for export-import, according to information from MTI each manufacturer that it is registered for TVSH, in the certificate is mentioned is the license of import-export. This is the reason why we don t agree with the opinion of the review expert and think that the evaluation commission has done a just evaluation. In the continuation of the session President of the Review panel gave the speech to the review expert who stated: Regarding complaining EO Metal Project also during the session representative of the complaining EO admitted that the insurance of the tender didn t provide with validity of 120 days as requested in the tender dossier, also the agreement with the manufacturer and the dealer is offered for only one (1) year. Regarding the group of EO Omnihem Pharm&Kromos, where the consortium didn t submit one signed statement by each member one by one according to point 11.1 point b of the tender dossier. Regarding the allegation of the complaining economic operator, that CA has done violation of the article 6 and 7 of the LPP, Review panel based in the findings of the review expert, explanation given during the hearing session, as well based in the article 59 point 4 of the LPP ascertains that allegation of the complaining EO is ungrounded for the fact that, one EO participant in a procurement activity is accountable only if it has fulfilled the selection criterions and technical specification required in the tender dossier and in the notification for contract, whereas in the concrete case complaining EO didn t fulfill the selection criterions as requested in the tender dossier, therefore justly is evaluated as not accountable from the evaluation commission by the CA.
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 points of the complaint which were evaluated as ungrounded, the statement of the representative of the complaining EO, representative of the CA, as well explanation given by the review expert during the hearing session, ascertained that CA during the offer s evaluation process in the procurement activity didn t respect the provisions of the LPP. Review panel based on that what was said above, evaluated that the complaint of the EO N.T.P METAL PROJECT from Gjilan is partly 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 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 Decision to be submitted: Hysni Hoxha 1.1x1 CA-Kosova Energy Corporation sh.a 2.1x1 N.T.P METAL PROJECT Gjilan 3.1x1 Archive of the PRB