Jehona Zhuniqi

The schools in the Municipality of Dragash were left without COVID-19 prevention supplies, even though the award was made twice. First the contract was awarded to “Samire Osmani B.I.,” while after the tender was referred back for re-evaluation, the award was made to “Matkos Pharm Sh.P.K.,” although the municipality had rejected the complaint filed by the latter. Due to improper planning, the funds that were earmarked for this procurement activity were refunded to the state budget as they were a government grant.

The Municipality of Dragash generously allocated EUR 109,400 for the procurement of COVID-19 prevention supplies for the schools in this municipality for the 2020/2021 school year. The Municipality of Dragash had a received an amount of 100,000 in the form of a grant from the Ministry of Finance. According to the evidence provided from the procurement officer in the Municipality of Dragash, Mr. Nura Ismaili, the request to the Ministry of Finance for the allocation of the amount has been done on November 26, 2020. However, in the question submitted to the respective official whether the budget allocated was planned before, but the allocation to the municipality happened in November, the Municipality of Dragash has not answered.

To this end, the Procurement Office of this municipality announced a call for tenders on October 12, 2020, where the deadline for submission of bids was October 19 of the same year. In this activity the municipality sought to procure the following: sanitizer dispenser 1000 milliliters, hand sanitizer 5 liters, space disinfectant, laser thermometer, oximeter, masks, disinfectant stands, hand sanitizer 500 milliliters, PVC protective masks, sprayer of 1.5 l and 18 l capacity.

There were seven Economic Operators (EOs) that submitted bids, where the Municipality of Dragash decided to award the contract to the second cheapest economic operator, Samire Osmani B.I., in the amount of EUR 52,488, on November 2, 2020, although the cheapest price was offered by another bidder.

AWA SH.P.K., Vlora Krasniqi BI had bid EUR 47,392, but the municipality declared this tender unresponsive on grounds of failing to provide a license from the KMA, and while the contract required the operator to provide proof of both wholesale and retail turnover, the bidder provided retail turnover proof only. The Municipality of Dragash had five other bidders declared unresponsive too.

However, one of the Economic Operators (Eos) took issue with this decision by the municipality. Three days upon award, EO Matkos Pharm Sh.P.K., filed a complaint to the municipality against EO Samire Osmani B.I., on grounds that the latter does not possess the wholesale certificate and does not meet the requirements according to CE and ISO certificates. Matkospharm Sh.P.K., share the reason for the complaint. “Upon looking at the files of the awardee, we noticed that the EO declared winner has not met the conditions required in the procurement activity and for this we have made a complaint,” states the response by Matkos Pharm Sh.P.K. However, the procurement office of the Municipality of Dragash, upon reviewing the complaint, on November 11, 2020, decided to reject this complaint stating that all allegations of EO Matkospharm Sh.P.K, are unfounded.

But Matkos Pharm Sh.P.K. did not stop there. They decided to complain to the Procurement Review Body (PRB). Subsequently, PRB decided to have the case referred back for re-evaluation.

The new Evaluation Committee decided on December 14, 2020, to award the contract to Matkospharm Sh.P.K, for this supply procurement activity in the amount of EUR 62,586. However, a search in Electronic Platform of Procurement (E-Procurement) fails to return such document describing in detail the decision of the Procurement Review Body, driving the procurement office of the Municipality of Dragash to make the award. So, the Municipality of Dragash was compelled to award the contract to Matkospharm Sh.P.K, only after this EO filed a complaint to the PRB, while their complaint was initially rejected.

How Was This Tender Referred Back for Re-Evaluation?

The Municipality of Dragash shares how the complaint of one of the EOs, the Matkospharm Sh.P.K,, was rejected, and then the contract was awarded to exactly that EO, after Matkospharm Sh.P.K, referred the case back for re-evaluation.

“On November 2, 2020, we awarded the contract to EO ‘Samire Osmani’ with the cheapest price, then we received a complaint for review against the Contracting Authority from EO ‘Matkos Pharm Sh.P.K’. We as Contracting Authority rejected the request for review as unfounded, and then the EO complained to the PRB, and the decision of the PRB was to refer the case back for re-evaluation. The complaint of EO Matkos Pharm Sh.P.K. to the PRB provided the grounds for the new Evaluation Committee to award the contract to this EO. We are reiterating once again, pursuant to the decision of the PRB for tender re-evaluation we awarded the contract to EO ‘Matkos Pharm Sh.P.K.,” since the decision of the Contracting Authority to award the contract to EO ‘Samire Osmani,’ was found to be unfair,” states the response from Nuro Ismaili, the Procurement Officer in the Municipality of Dragash.[1] But, upon contract award to Matkos Pharm Sh.P.K., EO Samire Osmani B.I., addressed to the municipality a request for access to official documents, which caused this procurement activity to be suspended again.

Apart from this document, in E-Procurement platform there is no other document showing whether EO Samire Osmani B.I filed a complaint or not. While representatives of EO Samire Osmani B.I did not want to talk about this issue, as time has passed, they do not want to give any statement.

Municipality of Dragash Explains Loss of Government Grant Exceeding EUR 100,000

The Municipality of Dragash failed to accurately set timeframes for this procurement activity, which due to improper planning led to loss of government grant in the amount of EUR 109,400.

On December 15, 2020, the Contracting Authority suspended this activity again, after EO Samire Osmani B.I. filed a complaint. The suspension lasted until March 26, 2021, when the municipality provided to the EOs Notice of Cancellation of Procurement Activity in full, even though one EO had been declared winner.

The announcement by the municipality stated that due to the end of fiscal year 2020 this project cannot be implemented, because the allocation being a government grant, was refunded as surplus.

But the municipality explained in more detail what led to the cancellation of this activity. “This procurement activity was cancelled because the budget funds earmarked for this project were from the government grant and all payments from the Treasury are closed on December 25,2020, and the remaining unexecuted funds are refunded to the budget surplus,” states the response by Mr. Nuro Ismaili, the procurement officer from the Municipality of Dragash.[2]

They even say that for 2021 they had not planned any such supply for school needs. “Government grant funds have been refunded to the budget surplus, and those funds are available in the Kosovo budget, and for 2021 such supply was not planned due to the fact that no one can predict what will happen with the COVID-19 pandemic, as the disease was unpredictable even for the professional healthcare staff, and since then we have not conducted any procurement activity for anti-COVID supplies,” it is further stated in the response provided by the procurement officer Mr. Nuro Ismaili from the Municipality of Dragash.[3]

Procurement Specialist Criticizes Municipality of Dragash

Public procurement specialist, Diana Metushi, says that municipal officials have failed to observe applicable procurement procedures. She is critical of the officials of the Municipality of Dragash, because with their delays in initiating this procurement activity, they both lost the government grant and put students and teachers in harm’s way.

“Were the Municipality of Dragash to initiate the procurement procedures immediately upon receiving the government grant and proceed with the re-evaluation of bids immediately upon receiving the complaints and not at the end of legal deadlines, the Municipality would have had ample time to make the contract award, in which case the required funds would be reflected in the budget of the following year as liabilities. However, an astonishing lack of urgency by municipal officials to conduct the procedure in question has caused not only the municipality to lose this grant, but students and teachers to be put in harm’s way as the call for tenders was for “COVID-19 prevention supplies for schools in the Municipality of Dragash for the 2020-2021 school year,” said Metushi.

EO Complaint Upon Cancellation of Procurement Activity

Matkos Pharm Sh.P.K. decided to challenge the Municipality of Dragash again. The company filed another complaint with the PRB on April 2, 2021, on the decision of the municipality to cancel the procurement activity, claiming that the decision of the municipality is inappropriate.

“We consider that the decision of the Municipality of Dragash, to not award the contract to us even though all the requirements were met with their justification that the funds were a donation and due to budget closure, the funds were withdrawn from the state Treasury and their justification that they do not have the funds to fulfill this contract, is inappropriate. “On such decision we were compelled to file a complaint again to the Procurement Review Body, but we missed the deadline and for this reason we lost,” states the response provided by Egnat Vitija from Matkos Pharm Sh.P.K.[4] While, just five days later, on April 7, 2021, the Procurement Office of the Municipality of Dragash responded to the company on the submitted complaint.

The response of the municipality provided by the procurement officer Mr. Nuro Ismaili states that their complaint was “not in the standard document form published by the Public Procurement Regulatory Commission (PPRC) and the complaint was made outside the deadline for complaint and request for review under Article 4 item C and Article 7.1.a., according to the adopted rules which complement and provide clarifications for filing requests for review with the Contracting Authorities, filing complaints with the PRB and determining complaint fees, and according to Article 8.1.1 of this regulation approved by the Public Procurement Regulatory Commission in accordance with Article 87, paragraph 2, sub-paragraph 2.8 and Article 118, paragraph 1, of Law No. 04/L-042 on Public Procurement, amended and supplemented with the Law No. 04/L-237,  05/L-068, and Law No. 05/L-092.

According to the situation explained as above, the following conclusions can be made:

• There have been delays in providing answers to Economic Operators from the Municipality of Dragash;
• The Municipality of Dragash first opened the tender, and then asked for budget for this tender from the Ministry of Finance;
• After the tendering procedures failed, schools were left without prevention supplies against the pandemic during the academic year 2021/2022;

Recommendations provided to the Municipality of Dragash:

• The Municipality of Dragash must respect the deadlines through tendering procedures in order not to result in loss of grant/s as the one mentioned in this article;
• The Municipality of Dragash must respect the deadlines in reviewing the complaints, and not take decisions without proper review of the complaints which then breach the decisions when reviewed by the Procurement Review Body (PRB).

[1] The question has been sent on October 13, 2021, to the procurement officer of the Municipality of Dragash, Mr. Nuro Ismaili, and the same has answered the following day, on October 14, 2021.

[2] The question has been sent on October 13, 2021, to the procurement officer of the Municipality of Dragash, Mr. Nuro Ismaili, and the same has answered the following day, on October 14, 2021.

[3] The question has been sent on October 13, 2021, to the procurement officer of the Municipality of Dragash, Mr. Nuro Ismaili, and the same has answered the following day, on October 14, 2021.

[4] The questions has been submitted to the company “Matkospharm sh.p.k” on October 13, 2021. The answer to the question was provided by Mr. Egnat Vitija from this company on the same day.

Disclaimer:

This publication was produced under the “Contribute to exposing flaws in institutional efforts to fighting COVID-19 pandemic through new legislation pieces and public contracts” funded by the European Union and implemented by Democracy Plus (D+). Its contents are the sole responsibility of the author and do not necessarily reflect the views of D+ or the European Union.