P.SH 70/15 73/15
Transcription
P.SH 70/15 73/15
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