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P.SH 70/15
73/15
80/15
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.Ekrem Salihu -President, Tefik Sylejmani-referent and
Hysni Hoxha-member, deciding on the complaint lodged by the economic operator
“Enex Trade”, EO “Abes” and EO “R&Rukolli”, regarding with the procurement
activity “Construction of a sports hall in this municipality of Dragash”, with
procurement no: 207-14-096-511, initiated by the Contracting authority (CA)– Ministry
of Culture, Youth and Sports (MCYS) on the hearing session of the 03.04.2015, has
issued this:
DECISION
I. Approved, as partly grounded the complaints of the economic operator “Enex
Trade”, EO “Albes” and “R&Rukolli”, regarding with the procurement activity
“Construction of a sports hall in this municipality of Dragash”, with procurement no:
207-14-096-511, initiated by the Contracting authority (CA)– Ministry of Culture, Youth
and Sports (MCYS).
II. Approved, decision for cancellation of the procurement activity, regarding
with the procurement procedure with title “Construction of a sports hall in this
municipality of Dragash”, with procurement no: 207-14-096-511.
III. Authorized Contracting authority/Ministry of Culture, Youth and Sports
(MCYS), that the procurement procedure with title “Construction of a sports hall in
this municipality of Dragash”, with procurement no: 207-14-096-511, to re-tender, if it
has still interest for this procurement activity.
IV. Contracting authority is obliged that within 10 days to notify the review
panel for all actions taken with regard to this procurement activity.
V. 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, that doesn’t respect the decision of the Review panel defined
with this Law.
VI. Since the complaining claims of the Complaining economic operator “Enex
Trade”, EO “Albes” and EO “R&Rukolli”, are partly grounded, conform article 118 of
the LPP it is returned the insurance fee of the complaint in the amount of 500.00 € (five
hundred euro).
REASONING
Contracting authority – Ministry of Culture, Youth and Sports on the 09.11.2014
has notified the PRB regarding the procurement activity “Construction of a sports hall
in this municipality of Dragash”, with procurement no: 207-14-096-511, contract notice.
As a criterion for contract award was responsive tender with the lowest price.
For this procurement activity have offered thirteen (13) economic operators, from
which according to the re-evaluation commission of the Contracting authority
recommends for contract EO “Kawa Group”
Contracting authority on the 27.02.2015 makes the notice for cancellation of the
procurement activity in the PPRC.
Against the notice for contract award, economic operator “Enex Trade” within
the legally prescribed deadline has appealed in the PRB.
Points of complaintof EO “Enex Trade”:
The complaining party claims that contracting authority during the performance
of this procurement activity has not respected article: 6, 7, 28, 59, 60, 67 and 68 of the
LPP.
The complaint of the economic operator is valid and is lodged by a competent
person.
The complaint is partly grounded.
Against the notice for contract award, economic operator “Albes” within the
legally prescribed deadline has appealed in the PRB.
Points of complaintof EO “Albes”:
The complaining party in the complaint lodged didn’t mention which provisions
of the LPP are violated but claims that contracting authority during the performance of
this procurement activity has not respected LPP.
The complaint of the economic operator is valid and is lodged by a competent
person.
The complaint is partly grounded.
Against the notice for contract award, economic operator “R&Rukolli” within
the legally prescribed deadline has appealed in the PRB.
Points of complaintof EO “R&Rukolli”:
The complaining party claims that contracting authority during the performance
of this procurement activity has not respected article: 1 of the LPP and article 25 of the
OGPP.
The complaint of the economic operator is valid and is lodged by a competent
person.
The complaint is partly grounded.
Procurement Review Body after receiving the complaint, pursuant to article 113
and 114 of the LPP no.04/L-042, dated 11.03.2015, has authorized the review expert of
the PRB Mr.Visar Basha, to review the implementation of the procurement activity, and
the validity of all claims of the complaining party.
Review expert of the PRB on the 23.03.2015, submits to the Review Pane the
expertise’s report, where in his report concluded that contracting authority – Ministry of
Culture, Youth and Sports (MCYS) “, during the performance of the activity
“Construction of a sports hall in this municipality of Dragash”, with procurement no:
207-14-096-511- has not respected in general the provisions of LPP, because at the part of
description of price has used names of the manufacturers which is in the contrary with
article 28.7 of the LPP, therefore recommended the review panel to cancel this
procurement activity and the case to return for re-tender, if it still has interest CA.
Contracting authority – Ministry of Culture, Youth and Sports, through written
memo dated 26.03.2015, notifies the review panel that agrees with the expertise’s report
dated 23.03.2015.
Complaining economic operator “Enex Trade” through a written memo dated
27.03.2015, notifies the review panel that doesn’t agree with the expertise’s report dated
23.03.2015.
Complaining economic operator “Albes” through a written memo dated
27.03.2015, notifies the review panel that doesn’t agree with the expertise’s report dated
23.03.2015.
Complaining economic operator “R&Rukolli” is not pronounced related with the
expertise’s report, whether it agrees or not with the expertise’s report.
In the case of proceedings in front of this body were presented proof while doing
the checking and analyzing of the material of this procurement activity which consists
of: the authorization of this activity, complaints of the complaining economic operator,
Review experts Report dated 23.03.2015, memos of the complaining EO and the memo of
the CA on the expertise’s report.
During the hearing session, review expert stated: CA-MCYS in page no.131 of the
tender dossier at point D, has required “Supply and installation of air-conditioner, duct
equipment Diakin made” – request that is in the contrary with the provisions of the LPP,
respectively article 28.7 of the LPP, for the reason that CA-MCYS, decisively requested
Japanese product of the above mentioned product and didn’t write down equivalent of
similar. I remain entirely by the expertise’s report of the 23.03.2015.
Review panel ascertained and evaluated that CA on the initiation of this
procurement activity didn’t respect article 28.7 of the LPP, “Contracting authority will
not draft technical specifications that refer to a product or special source, or detailed
process, or any insignia, particular type or origin or production”, while in this case CAMCYS in page no.131 of the tender dossier, point D, has requested: “Supply and
installation of air-conditioner, duct equipment DAIKIN made, model: FBQ 100C8RZQG1008V8” Japanese manufacturer without writing the term or equivalent”.
So in this case CA-MCYS, has restricted the competition and participation of the
other economic operators intrested for this procurement activity.
Review panel after ascertainment of violation of article 28.7 of the LPP didn’t
loook at the other complaining claims of complaining economic operators for violation
of the LPP by the Contracting authority because Contracting authority in this case has
done essential violations of the LPP.
The review panel from the evidence presented above decided to trust the
expert’s report of the PRB dated 23.03.2015 and 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
Ekrem Salihu
_____________________
Decision to be submitted to:
1x1 exemplar – EO Complainant
1x1 exemplar – Contracting authority
1x1 exemplar – Archive of the PRB