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P.SH 537/14
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, consisting of: Mr.Tefik Sylejmani-President, Ekrem Salihu-referent and Hysni
Hoxha member, deciding on the complaint lodged by the EO “EL-BAU“from Gjilan,
with protocol no.537/14, regarding with the procurement activity “Asphalting of streets
in the neighborhood no.VIII “Motrat Qiriazi” and “Hasan Tasini” sewage on the
street“Riza Poliqka” L = 158m, Malësia 2L = 161m” with procurement no. GI 651 14
067/521, initiated by the Contracting authority – Municipality of Gjilan, on the hearing
session held on the 05.02 2015, has issued this:
DECISION
I. APPROVED, as grounded the complaint of the EO “EL-BAU“from Gjilan,
with protocol no.537/14, regarding with the procurement activity “Asphalting of
streets in the neighborhood no.VIII “Motrat Qiriazi” and “Hasan Tasini” sewage
on the street“Riza Poliqka” L = 158m, Malësia 2L = 161m” with procurement no.
GI 651 14 067/521, initiated by the Contracting authority – Municipality of
Gjilan.
II. CANCELLED the decision of the Contracting authority, for contract award
notice of the 22.12.2014, regarding with procurement activity for the tender
“Asphalting of streets in the neighborhood no.VIII “Motrat Qiriazi” and “Hasan
Tasini” sewage on the street“Riza Poliqka” L = 158m, Malësia 2L = 161m” with
procurement no. GI 651 14 067/521, and the case returns for re-evaluation.
III. OBLIGED Contracting authority that within 10 days to notify the review
panel for all actions taken with regard to this procurement activity.
IV. Allowed taking back the deposit of the complaint in the amount of 500.00 €
EO “EL-BAU” Gjilan, in accordance with article 118 of the LPP and article 35 of
the Rules of Procedure of the Procurement Review Body.
Non-compliance with this decision obliges the Review Panel conform with the
legal provisions of article 131 of the LPP no. 04/L-042 to take action against the
Contracting Authority.
REASONING
Contracting Authority-CA- MA of Gjilan opened procurement activity
“Asphalting of roads in the neighborhood nr.VIII “Motrat Qiriazi” and “Hasan Tasini”
sewage in the streets “Riza Poliqka L = 158m Malësia arm 2L = 161m “ with proc.no.651
/ 14/067/521, making the contract notice in the PPRC dated 24.07.2014.
Type procedure - open, contract with medium value.
The deadline for bidding has been 13.08.2014, while opening of the bid is made
in this date at 14:30.
Contract award criteria - responsive tender with the lowest price.
For this procurement activity have applied 5 EO, while re-evaluation commission
of 3 members recommended for contract EO “Zuka Commerce” from Gjilan.
Contract Award Notice is done on the 22.12.2014.
As aggrieved party for award notice EO “El Bau” submitted a complaint in the
PRB no. 537/14, alleging that CA-MA of Gjilan during the activity has violated the
provisions of the LPP Article 6, 7, 56, 59 and 60 of LPP.
At the same time complaining EO claims that the reason for the elimination of
this EO from the activity is illegal.
Complaining EO requires from the PRB to annul the decision of the CA for
contract award as illegal and to oblige the CA to return the case to re-evaluation and in
this case complaining EO to be rewarded with a contract.
Complaint is approved as grounded.
PRB on the 03.01.2015 authorizes the review expert Mr.Muhadri to review the
complainig claims and the same expert submits the panel the expertise’s report on the
26.012015, with analysis, findings, answering the points of complaint and gave the
opinion that CA Municipality of Gjilan justly excluded from this procurement activity
after complaining EO since it has qualified as inappropriate EO under the provisions of
Article 65.3.2 of the LPP, due to non-fulfillment of the dynamic plan that this EO has had
CA- Municipality of Gjilan.
The review panel on the 27.01.2015 through memo from CA is notified that the
same agree with the expertise’s report.
On the 29.01.2015 complaining EO through memo notifies that the same do not
agree with the expertise’s report.
At the hearing held on the 05.02.2015, which was attended by representatives of
the CA, review expert, representative of the complaining EO, the review panel were
reviewed the case files as: tender dossier with technical specifications, expertise’s report
of the procurement review expert, complaint and complaining claims, material evidence
presented at the hearing and made the hearing of the parties where following the word
was given to the representative of the complaining EO “El-Bau” Mr. Pireva who stated:
“I stand in full at the complaint and complaining claims and do not agree with
the remarks that has done CA for not implementing dynamic plan for the procurement
activities engaged earlier. Remarks of the CA are not based on legal provisions where all
those observations I submitted with complaint and again we submitted in written
observations since one has nothing to do with “El-Bau” but for another EO and the other
complaint has to do during the phase when I made a complaint in the PRB and during
the re-evaluation of the bids is this activity is making the remark that for the same
project have the final report of the project manager and have two requests for technical
acceptance and CA did not form a committee for technical acceptance but continues to
send feedback on the same project”.
In the following the speech was given to the representatives of the CAMunicipality of Gjilan Mr.Bekteshi who stated:
“As we notified the review panel once again stand by the decision of reevaluation committee and support the expertise’s report”.
Following the speech was given to the review expert Mr.Muhadri who stated:
“CA-Complaining EO has announced accountable but declares inappropriate
conform with article 65.3.2 of the LPP citing remarks of the CA for delays in
implementation of projects”.
The review panel approves as grounded the complaint and complaining claims
of EO “El-Bau” with protocol no. 537/14.
The review panel from the memos of the case found that EO “EL- BAU” has
submitted two requests for admission of works and on the 16.06.2014 and 13.11.2014
after the factual situation that works are carried out in accordance with the terms of the
contract as stated in the report on completion of works of supervising body that remark
of the CA no.02-16-114477 dated 03.10.2014 and remark no.16-1369960 dated.15.12.2014
are the same project and the review panel can not approve because CA has not
submitted any report by the contract manager for contract implementation defects and
no answers about complaining EO requirements listed above for acceptance or nonacceptance of the project.
The review panel also found that the remark on the project “Asphalting of roads
in Dardania neighborhood, roads “Muharrem Ibrahimi” VII, X and XII has nothing to do
with “El-Bau” but with another EO as a contracting party, this was proven with contract
no.16-65572 dated 10.06.2014 made between the “Conex Group” and the Municipality of
Gjilan.
Based on article 65.3.2 review panel found didn’t find evidence to approve the
decision of the CA to eliminate complaining EO from this procurement activity as
inappropriate.
The review panel after reviewing all the case files of the above as: tender dossier
with technical specifications, expertise’s report of the procurement review expert,
complaint and complaining claims, material evidence presented and their confirmation
in the hearing session and review panel 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
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