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P.SH 133/12PROCUREMENT REVIEW PANEL, appointed by the President Pursuant to theArticle 105 as well article 106 of the Law on Public Procurement in Kosova no.04/L-042,composed of Mr. Hysni Hoxha- President Mr. Tefik Sylejmani-referent and Mr. EkremSalihu-member, deciding according to the complaint lodged from the EO “NTSH-PROFITECH ” with residence in Mitrovica, regarding the procurement activity “Supplywith laboratory equipment of toxicology, apparatus: gas-chromatography the massspectrometer (GC/MS? Apparatus CO -ox meter”, initiated from the contractingauthority (CA)/Ministry of Justice (MJ), on the 06.07.2012 has issued the following:D E C I S I O NON THE REFUSAL OF THE COMPLAINT OF THE EO: “NTSH-PROFITECH”MITROVICA, NO.133/12, OF THE DATE 08.06.2012, AS UNGROUNDEDI. Refused, the complaint of the EO “NTSH-PROFITECH” from Mitrovica,regarding the procurement activity “Supply with laboratory equipment of toxicology,apparatus: gas-chromatography the mass spectrometer (GC/MS? Apparatus CO -oxmeter”, with procurement no.21500/210/12/014/111 initiated from the contractingauthority (CA)/Ministry of Justice (MJ), as ungrounded.II. Certified, the decision of the contracting authority (CA)-Ministry of Justice(MJ), regarding the procurement procedure with title “Supply with laboratoryequipment of toxicology, apparatus: gas-chromatography the mass spectrometer(GC/MS? Apparatus CO -ox meter”, with procurement no.21500/210/12/014/111, asgroundedIII. Non-compliance with this decision shall oblige the review panel conformlegal provisions of the article 131 of the LPP no.04/L-042 to take actions againstcontracting authority, that doesn’t respect the decision of the Review Panel provided forin this Law.IV. Since the complaining claims of the complaining economic operator “NTSH-PROFITECH” from Mitrovica are ungrounded, conform article 118 of the LPP it isconfiscated the insurance fee of the complaint in the sum of 500.00 Euros (five hundredEuros).

REASONINGEconomic operator “NTSH-PROFITECH” from Mitrovica, as a dissatisfiedparty deposit a complaint in PRB on the 08.06.2012 with protocol no. 133/12, against thenotification for contract award of the (CA) Ministry of Justice (MJ), claiming thatcontracting authority has done the essential violation of the provisions of the LPPno.04/L-042 as are:Article 28 of the LPP- Technical specification;Article 59 of the LPP- Examination, evaluation and comparison of the tenders.Article 60 of the LPP0- Criterions for contract award;Procurement Review Body after receipt of the complaint, based in the article 113of the LPP no. 04/L-042, has authorized the review expert to review the procedure forthis procurement activity, as well the validity of all complaining claims of thecomplaining party “NTSH-PROFITECH”from Mitrovica.Review expert in his report of the 26.06.2012 has ascertained that it is groundedthe ascertainment of the evaluation commission of the CA that complaining EO is notaccountable, for the fact that didn’t provide technical specifications conform requestslodged in the tender dossier, whereas has ascertained that complaining EO himselfadmitted in the complaint that the capacity offered from complaining EO for vitalsamples is smaller than the request of the CA, which it means that only in this elementwhich is not in compliance with the requests of the CA this operator is not accountable.From CA was requested that this capacity to be at least 150 samples, whereascomplaining EO has provided 100 samples.Also review expert has ascertained that complaining EO at some other elementsdidn’t provide technical specifications as were requested by CA, for example automaticcooling down to initial temperature after analysis (cool down 450C to 50C in 3.5 min),whereas complaining EO has provided (cool down 400C to 50C in 4.5 min), then CA hasrequested that user selectable ionization energy from 5-100 ev, whereas complaining EOhas offered 10-150 ev etc. Whereas EO recommended for contract didn’t provide theauthorization from the manufacturer as it was requested in the tender dossier at the FTDarticle 9.1 point 1, but has offered from the distributor, therefore has considered thathasn’t fulfilled all requested lodged by the CA. Also according to the review expert EOrecommended for contract in the absence of the above mentioned element (authorizationfrom the manufacturer) is not accountable and at the same time ascertains that for Lot-1remains only one accountable EO.Regarding the allegation of the complaining EO “NTSH-PROFITECH”, reviewexpert has ascertained that examination, evaluation and comparison of the tenders itwasn’t done conform article 59 of the LPP and at the same time ascertains that allegationof the complaining EO are grounded taking into account the above mentionedascertainments.

Review expert in the end of his report mentioned in the expertise thinks that CA-Ministry of Justice, regarding the procurement activity “Supply with laboratoryequipment of toxicology, apparatus: gas-chromatography the mass spectrometer(GC/MS? Apparatus CO -ox meter”, with procurement no.21500/210/12/014/111 ingeneral didn’t implement the procurement procedures conform LPP no.04/L-042,therefore recommends to approve the complaint of the complaining EO and to cancelthe decision of the CA for contract award and at the same time recommends that theabove mentioned activity to return for re-tender, if is still interested CA for this.CA through memo of the 28.06.2012 has notified the PRB that doesn’t agree withthe report and ascertainments of the review expert for this procurement activity.During the session of the main review of the 06.07.2012, in which were presentmembers of the review panel, review expert, representative of the complaining EO, aswell the representative of the CA, were presented the proof while doing the checkingand analyzing the documentary of the procurement activity which is composed from:authorization of the procurement activity, notification for contract, record on the offer’sopening, decision on establishment of the bids evaluation commission, evaluation reportof the bids, notification on the contract award, the complaint of the complaining EO, thereport of the review expert, the answer of the CA on the expertise’s report.During the presentation in the session representative of the complaining EO“NTSH-PROFITECH” from Mitrovica, stated exactly in the letter addressed to Ministryof Justice, in the tender dossier at the technical and professional capacities point 6 it issaid that CA explains that to each specification being referred a certain product ormanufacturers especially of the type, name of the model or brand must be understood asequivalent, so based on the ascertainment no.2 of the review expert as well point 6 of thetender dossier collide with each other, because we have offered equivalent, where everyequivalent it is not assumed to be identical in each point with the product required fromCA. Also the level of detection requested by CA was smaller than 6, whereas us we haveoffered smaller than 7, which includes smaller than 6. As we have mentioned in thecomplaint, CA has taken into account only the disadvantages which were much smallerthan the advantages that has had the equipment offered by us, which is better than theproduct offered by EO recommended for contract, where the specifics and details for theadvantages of the product offered by us, comparing with products of the EO selected forcontract, can be seen in our complaint.During the presentation in the session representative of the CA stated that:Expert ascertains that complaining EO also at some other elements didn’t providetechnical specifics as required, where for example it was requested from cool down 450C until 50C for 3.5 min, whereas complaining EO “PROFITECH” has offered cool down400 C until 50 C for 4.5 min, which it means the decrease of the temperature of theproduct of the complaining EO, doesn’t achieve the purpose of the temperaturesrequested but also spends a lot of time in cooling down these equipment to give therequired result. Complaining EO didn’t offer the injection- taking of a sample where itwas requested of 0.5 till 50 micro liters, the same has offered from 10 until 500 microliters, which it means it is a big quantity, to us is needed much smaller quantity of bloodsamples. Whereas regarding the 150 vials samples required where we requested 150whereas complaining EO has offered 100. Us when we work we place in 150 samples

and the machine works all night, in this case we win on time, the request of thelaboratory is toxicology lab, the purpose is to win on time and get accreditation.Also we were the panel of 5 members, except me that I work in the laboratory, we hadthe expertise of the crime, and we have reviewed these specification.As follows regarding the ascertainment no.4, that EO recommended for contract didn’tprovide authorization from the manufacturer as required in the tender dossier at FTD atpoint 9.1.1 I must state that we don’t agree with the ascertainment of the review expertbecause the manufacturing company “Angilent” from America has authorized directly “Alpha Crom” which is responsible for the whole Balkan region through authorization ofthe 31.01.2011 for sales, servicing, validity and that possesses also the certificates of theauthorized servicer, after long consultation the outcome is that CA on the occasion ofevaluation of this activity, where this authorization even though is from the leader hasevaluated as notarizing the manufacturer, for the reason that this manufacturer hasguaranteed for all these mentioned above, and that not only for Kosova but for allregion. Me as a representative of the CA I request from the panel that the decision of theCA to be approved and the complaint of the complaining EO to be rejected.During the presentation in the session, review expert stated that in the article 9.1was decisively requested to be the authorization of the manufacturer, where EOrecommended for contract has authorization from the distributor. Whereas EO “Megabro” has the authorization from the manufacturer but it is a fact that this EO is around30.000 Euros more expensive and I am surprised by the fact Why CA has decisivelyrequested in the dossier, the authorization must be from the manufacturer where thesame authorization is issued from different representatives that deal with this nature ofworks, as well for ensuring the implementation of this project. In the end I want to addthat complaining EO “Profitech” in the complaint in the end has admitted that hasn’tfulfilled all technical specifications required by CA.Review panel regarding the allegation of the complaining EO “NTSH-PRPOFITECH” that CA has violated article 28, that has to do with technicalspecifications, review panel ascertains that technical specifications were done conformprovisions in force.Review panel regarding the allegation of the complaining economic operator“NTSH-PROFITECH” that Ca has violated article 59 and 60 of the LPP, has ascertainedthat examination, evaluation and comparison of the tenders was done in harmony withprovisions of the LPP, so by the evaluation commission was recommended for contractEO which has submitted accountable tender with the lowest price.

Review panel based on the ascertainments and recommendations of the reviewexpert, after screening of the proof in the hearing session as well based in all writtenevidence, ascertained and evaluated that complaining claims mentioned in thecomplaint considers as ungrounded, and at the same time comes to a conclusion that CAregarding this procurement activity has respected in general material and proceduralprovisions of the LPP, while recommending for contract EO which has submittedaccountable tender with the lowest price. Whereas regarding the authorization from themanufacturer issued by the distributor requested by CA, review panel ascertains thatthe authorization provided from EO recommended for contract is valid and fulfills allrequests lodged in the tender dossier, since it is issued for sales, servicing and validity ofthe equipment.Therefore review panel based on the article 117 of the LPP and that what wassaid above, 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 compensationin front of the Supreme Court of Kosovo,within 30 days after the receipt of this decision.Chairman of the Review PanelHysni Hoxha_____________________