The 2.5 million Opera tender goes to the PRB, under suspicions of favoritism to the winning company
Serious allegations have been filed in the Public Procurement Review Body (PRB) for favoring the winning company in a 2.5 million tender for the construction of the Opera and Ballet Theater of Kosovo, on 28 September 2023.
On August 11, 2022, the Ministry of Culture awarded the contract to the German company “Gerber Architekten”, file number 6842, despite the fact that it had violated the main tender rules, by revealing the name of the company in the bid and submitting the bid without a sealed envelope.
The Public Procurement Law requires that companies bid only with codes in tenders for design projects to avoid influencing the evaluation committee. More precisely, Article 80 of the Law on Public Procurement – LPP, clearly provides that revealing the identity of bidders to the jury is a legal violation.
Item 2 of this Article specifies that: “The jury shall decide the contest only on the basis of the criteria indicated in the design contest notice. The identity of the participants shall not be disclosed to the members of the jury”.
However, in the documents observed by the “Buletini Ekonomik”, it can be seen that this company placed its logo on each page of the conceptual design project.
This fact caused some suspicion among the other companies in the competition, which claimed that this company was favored by the evaluation committee. The complaining companies are: “Consortium MVRDV” in partnership with “OUD-ARCHITECTS” SH.PK, and the Group of Economic Operators consisting of “Green Door” SH.PK, “Chapman Taylor LLP” and “Progetto CMR SRL”.
The other infringement, which added to the suspicion of favoritism of the winning company among the complaining companies, is related to the fact that the German company had not even submitted its bid in a sealed envelope, as required by law.
According to Regulation 01/2022 on Public Procurement, more specifically articles 55.14 and 55.16 of this Regulation, companies are required to submit projects in separate envelopes and sealed in another outer envelope with the relevant codes, a criterion violated by the awarded company during the application.
“The participant shall seal the original project and each copy in separate envelopes and each one of such envelopes, on the front, shall note: a. Mark clearly as “Original – Conceptual Project” or “Copy – Conceptual Project”; b. Indicate the procurement number as stated in the design contest dossier; and c. An anonymous four-digit number of the participant’s own choice. The envelopes shall then be sealed in an outer envelope clearly marked “Conceptual Project” and bearing only the procurement number and an anonymous four-digit number of the participant’s own choice”, is the wording of the Article 55.14 of this Regulation.
Meanwhile, Article 55.16 emphasizes that both envelopes, containing the “Conceptual Design” and the other envelope with the “Candidate’s Documentation”, must be sealed in another outer envelope, with specific data, and sent for application.
According to the other two participants in the contest, the awarded company did not observe these two items of the regulation either. Companies have complained that all the application documents submitted by the contract awardee were open and without envelopes and that the logo of the winning company in the project presented to the jury was covered only with a piece of adhesive paper, on which the assigned code was written.
“In this product, the logo of the company under the code 6842 is clearly visible, and it can be seen that this company is “GERBER ARCHITEKTEN”, which implies that in this case, the Committee knew about the company. In this case, the vendor’s offer should have been automatically disqualified from further evaluation, and not awarded the first”, wrote BIG Partners Ltd in its complaint.
The tender for the conceptual design project for the construction of the Opera and Ballet Theater of Kosovo ended with the Procurement Review Body (PRB) on September 23 of this year, almost a year after its announcement.
A total of five companies had initially filed their bids for this tender, while in the second phase of evaluation, only three of them passed, one foreign and two domestic companies, in partnership with foreign companies.
Ten months after the opening of the said tender (October 2022), more precisely on August 11 of this year, the Ministry of Culture finally published the decision, which listed the findings of the evaluation committee for this project. According to these results, the company “Gerber Architekten”, code 6842, was ranked first, collecting the most points.
Findings of the Evaluation Committee for this project:
The Ministry of Culture had accepted the bids with the names of the companies, and the Evaluation Committee, despite the legal clause requiring bids to be submitted under codes, without disclosing the name of the company, had awarded the contract to one of them, namely the operator with code 6842.
In its response to these complaints, the Ministry of Culture stated that some of the points do stand ground, while for some other items, their answer was that they were partially grounded.
“The Contracting Authority has come to the conclusion that such findings may be qualified as non-essential deviations, which do not violate Article 59, Paragraph 4 of the applicable LPP”, the Ministry of Culture stated in its initial clarification.
Because of these allegations, the Ministry of Culture decided to cancel its decision and return the process to re-evaluation, but then made the same decision for the second time.
“Buletini Ekonomik” requested Access to Public Documents from the Ministry of Culture to this tender, but the Ministry of Culture rejected such access to the data, on the grounds that “the case has already gone to PRB” and that “the Procurement Office, as the competent body, cannot offer documents in an inconclusive procedure to an entity that was not part of the procedure“.
“Buletini Ekonomik” tried to get an answer from the awarded company “Gerber Architekten”, regarding the claims of the other two operators with whom it was competing for this project, however, it did not receive any reply until the publication of this article.
Otherwise, on August 2 of last year, with a majority of 75 Members of Parliament, the Assembly of Kosovo voted in favor of the “Proposed Decision of the Government of Kosovo for the establishment of the institution of the Opera of Kosovo as a public service institution”. This vote was preceded by the decision of the Municipal Assembly of Pristina to allocate the area behind the Palace of Youth and Sports as the most suitable location for the Opera and Ballet Theatre, in which case, the majority of Assembly members had voted in favor.
The tender announced in October last year is the fourth attempt of the Ministry of Culture to build this cultural institution. The first process for this purpose was conducted in December 2009, when the initial foundation was laid in a plot near the Technical Faculty. However, after more than two years, the project was announced to be invalid (July 2012) by the Ministry of Culture.
Meanwhile, the second and third attempts took place in 2019, when the Ministry of Culture decided to re-initiate a similar process. In June 2019, the first tender had been announced that year, which then got cancelled after only a month, on the grounds that the bidding companies had encountered issues in their applications. However, only a few days after the cancellation, the same competition was announced again, several applications were received from several companies, but the process had stalled again.
This article was published within the project “Good governance: stronger public procurement and policy-making” funded by the EU, implemented by Democracy Plus (D+). The contents of this publication are the sole responsibility of Democracy Plus (D+) and do not represent the views of the European Union.