The tender for the construction of the western bypass around Podgorica, worth 20,4 million euros, was annulled after it was determined that the Traffic Administration did not provide the company "Briv Construction" with access to part of the tender documentation. The Administration had already awarded this job at a price of 20,39 million euros to the company "Bemax" and their subcontractor "BB Solar" at the end of last year, which "Briv" disputed.
The Commission for the Protection of Rights in Public Procurement Procedures decided on that appeal and annulled the tender, and a lawsuit against such a decision can be filed in the Administrative Court for another 20 days.
"It clearly follows from the above facts that the contracting authority (Traffic Administration) did not enable the appellant ("Briv construction") to inspect the documentation that was not submitted via the EPPS at its request on December 30, which is of essential importance for assessing whether the bidders submitted all the necessary documentation, i.e. whether "Bemax" submitted the original bid guarantee, inspection and the envelope in which it was submitted. Given that the procedure in question is covered by a material violation of the rules of procedure referred to in Article 195, paragraph 1, item 7 of the Public Procurement Law, and which material violation cannot be eliminated by subsequent actions, the established material violation constitutes a legal reason for the annulment of this public procurement procedure in its entirety," the Commission's decision states.
The construction of a three-kilometer-long bypass is planned from the Komanski Bridge to the roundabout at the "Grand" furniture showroom in Donja Gorica.
“BB Solar” is a company whose founders are half Blazo Djukanovic (son of the former president of the country) Milo Đukanović) of the Ivan Burzanović.
Complaints, repetitions and lawsuits
The Traffic Administration announced a tender for the construction of the bypass at the end of September last year and lasted until October 24, and two bids were received, namely the companies "Bemax" and "Briv Construction". The Administration then determined at the end of November that the bids of these companies were incorrect, which is why it requested the cancellation of the tender.
“Bemax” appealed this decision, after which the Commission decided in mid-December that the Administration should repeat the evaluation of the bid and select the contractor once again. Because of this decision, “Briv” sued the Commission before the Administrative Court, requesting the annulment of such a decision. Given that the tender was continued, the Transport Administration awarded the job to “Bemax” during the re-selection at the end of December due to the most favorable bid, while “Briv” offered 17,96 million euros, but was excluded from the procedure.
Then, on January 9, “Briv” filed an appeal against that decision, alleging that the Traffic Administration incorrectly and incompletely determined the factual situation, incorrectly applied substantive law, and violated the tender rules. They also claimed that such a decision was unlawful because the Traffic Administration, pursuant to the Commission’s decision of December 17, had to determine that the “Bemax” bid guarantee was classified as secret.
They also add that the decision is illegal because the Transport Administration did not determine whether the "Bemax" offer was made in the language specified in the tender because it contains words in a foreign language, that "Bemax" and the subcontractor "BB Solar" submitted statements but did not explain how it was concluded that they met the conditions, that the "BB Solar" company was awarded a job in high and low voltage electricity that was not required by the tender, and they also disputed the qualifications of the staff of these two companies because there is allegedly no evidence of the expertise of the workers...
"It points out the fact that the contracting authority violated the principle of economy, efficiency and effectiveness of the use of public funds, considering that as a bidder, it offered a price that was 2.000.000 euros lower than the price offered by "Bemax". In conclusion, it proposes that the Commission uphold the appeal and annul the contested decision, then order the contracting authority to eliminate the identified irregularities," Briv's appeal states.
“Briv” then requested from the Transport Administration on December 30th, insight into the complete electronic tender documentation within two days and for a duration of at least 24 hours, as well as insight into documents that were not submitted through CeJN, within two days and for a duration of no less than two hours. The Administration responded on the morning of December 31st that they had been granted the right to insight into the bids, and already in the morning of the next day they revoked that right.
The Transport Administration did not enable "Briv Construction" to inspect the documentation that was not submitted via the EPP, which is of essential importance for assessing whether the bidders submitted all the necessary documentation, i.e. whether "Bemax" submitted the original bid guarantee, inspection and the envelope in which it was submitted, the Commission noted.
On February 15, the Commission contacted the Transport Administration to provide them with evidence of whether they had provided “Briv” with access to the documentation, but no response was provided. They determined that there had been a violation of the procedural rules set out in Article 195, paragraph 1, item 7 of the Public Procurement Law, i.e., that Article 145 of this regulation had not been followed.
"The contracting authority is obliged, after the publication of the decisions referred to in Articles 143 and 144 of this Law in the EPP until the expiry of the appeal deadline, to provide bidders and candidates to whom the decision relates, upon the request of those bidders and candidates submitted via the EPP, with access to the complete electronic documentation of the public procurement procedure, within two days from the date of submission of the request, for a period of at least 24 hours, as well as direct access to documentation that has not been submitted via the EPP, within two days from the date of submission of the request, for a period that cannot be shorter than two hours," states that article of the Law.
The Commission stated that the tender was annulled on this basis, so there was no need to review the other complaints.
To build a year and a half
Director of the Traffic Administration Radomir Vuksanovic said at the end of September last year that the deadline for completing the works on the bypass was 18 months from the introduction of the contractor into the job.
He announced this during a meeting with the Prime Minister. Milojko Spajić, director of Monteput Milan Ljiljanić and the then mayor of Podgorica Oliver Injac.
This boulevard will have sidewalks on both sides, four lanes, three intersections and one roundabout, and is being built through a Co-financing Agreement, with the Administration financing the construction of the road, and the Capital City financing the expropriation of land and the construction of utility infrastructure.
"Our duties were the preparation of the project and technical documentation, then expropriation and communal infrastructure. A lot of work has been invested in the previous months, and we expect that the dynamics will go according to plan, and that the works will soon begin to the satisfaction of the citizens of Podgorica", emphasized Injac and added that this is a priority infrastructure project, which will facilitate transit around Podgorica .
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