Fatlum Berisha

The period while the Procurement Review Body (PRB), otherwise known as the “Tender Court” remained without a board and therefore did not have a mandate to decide on the complaints that came to this body, was used by some institutions that entered contracts with companies that did not meet legal requirements.

These contracts were signed despite opinions of review experts who recommended that certain procurement activities should be canceled or returned to re-evaluation. Although the expert opinions are not binding on the PRB review panels, the decisions of this body are usually based on their expertise.

The new board, which was appointed at the end of June this year, took a decision not to adjudicate complaints that had come before its appointment by the Assembly, on the grounds that the legal deadline for reviewing these complaints had elapsed.

This decision opened the way for institutions to sign contracts that were in violation of the Public Procurement Law, for which there was reasonable suspicions that they should have been canceled. This research identifies three such cases.

Case I: In April 2022 the Peja municipality started a procurement activity for horizontal and vertical road signs, with an estimated value of 74 thousand Euros. The Municipality of Peja recommended the company ErLis Sh.PK for a contract in this tendering procedure, as the tender with the lowest price. This company had not submitted the card or invoice, through which it would prove that it possesses the equipment required for road signs, which, according to the tender file, had to be proven through company card or invoices. Also, the offer of ErLis Sh.PK was abnormally low, since it was 30% lower than the average of bids submitted by six (6) other companies[1]. In this situation, the Municipality of Peja would have to ask for additional clarifications on how such company had come up with the offered price, and if the explanation was not sufficient, it would have to be eliminated.

Two companies filed a complaint about this tender, while the review expert at the Public Review Body had recommended that the award of the contract to Erlis Sh.PK be canceled, and the matter returned for re-evaluation.

Even though the circumstances that made the offer of Erlis Sh.PK irresponsible were highlighted, and despite the issuance of recommendation of the PRB expert, the Peja Municipality went on and signed a contract with the ErLis Sh.PK. company, at the beginning of October.

Case II:  The municipality of Rahovec used the same method when it awarded a contract to the N.Sh. Liriu Company for tendering horizontal and vertical road signs in Rahovec, which had an estimated value of 150 thousand Euros. This economic operator was not responsible for the fact that it had not met the requirement for technical and professional capacities in relation to the required staff, specifically the requirement for six (6) technical staff, and two (2) professional staff had not been met as the offer of N.Sh. Liriu contained only seven employees.

Photo 1. List of employees in the bid of the winning company N.Sh. Liriu, where the ordinal number does not coincide with the names of the employees.

A complaint was filed to the PRB about this tender as well, and where after analyzing the case, the review expert had recommended[2] that the matter should be returned for reassessment.

The expert’s report was not taken into consideration by the Rahovec Municipality, which, invoking the decision of the new board of the PRB not to handle complaints, concluded a contract with N.Sh. Liriu on August 16, 2022.

Case III: In March 2022, the Ministry of Internal Affairs (MIA) opened a tender regarding the maintenance of the information management system in the laboratory. Three companies participated in this procurement activity, for which more than 60,000 Euros were pledged. MIA recommended the company LeadTech Sh.PK for the contract, while eliminating the other two bidders on the grounds that they were irresponsible.

However, LeadTech Sh.PK was not responsible for the fact that it had not provided the correct data for the services performed in the field of software and its maintenance, in the last three years. The contract presented by this company had only the title, while in the tender dossier required to specify the amount, the date, and the recipient of the contract and to attach evidence (a copy of certificate or reference signed by the recipient of the services for the mentioned contract).

Likewise, this company in its offer presented three (3) experts as employees, without any evidence that they were part of it. The CVs of two of the experts indicate that they work for another company, while in the Trust statements of the third expert, it is noted that no tax liability has been paid by LeadTeach Sh.PK, which means that he is not in an employment relationship with this company either.

Despite the review expert’s recommendation[3] that the PRB review panel compels this contracting authority to cancel the decision on the contract and return the case for re-evaluation, the MIA continued with the signing of the contract.

These cases show that the decision of the new board of PRB, not to review the complaints filed before its appointment, was misused by the contracting authorities which did not take into account the recommendations of the review experts and continued with the signing of contracts in violation of the Public Procurement Law.

Disclaimer:

This article was produced under the project “Good governance: stronger public procurement and policy-making” 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.

[1] Law No. 04/L-042 For Public Procurement of the Republic of Kosovo.

[2]The Report of the Review Expert regarding the activity “Horizontal and Vertical Road Signs” with procurement number 632-22-1304-5-2-1, published on 10.06.2022.

[3]The Report of the Review Expert regarding the activity “Maintenance of the information management system at the Lab” with procurement number 214-22-1548-2-2-1, published on 20.05.2022.