The company "Bemax" has filed a dispute before the Administrative Court over the decision of the Commission for the Protection of Rights in Public Procurement Procedures to confirm their exclusion from the tender for the adaptation of the old government building for the needs of the Special State Prosecutor's Office (SDT) and the Special Police Department (SPO).
This was confirmed to "Vijesti" by "Bemax", with the assessment that economic profitability was "ignored" and that the message was being sent - that in Montenegro "quality and the best price are not chosen, but political and formal suitability".
The Ministry of Public Works announced a tender for the adaptation of the building at the end of August and lasted until the beginning of November, and the job ultimately went to a joint bid by the Nikšić-based companies "Ramel", "LD gradnja", "Stambeno" and Danilovgrad-based "Timing". The contract with them, worth 2.333.325 euros, was signed on December 2, and it is planned that the contractor will carry out the work within three months and provide a guarantee for it for at least two years...
“Bemax” participated in the tender with subcontractors - “Montinspekt”, “Bauriss” and “Termosistem”, but the Ministry excluded them due to an incorrectly completed declaration, while their offer was worth 2.155.963 euros. The company appealed this decision, so the case was decided by the Commission, which ultimately rejected it.
A dispute may be initiated against the Commission's decision in the Administrative Court.
"The company 'Bemax', as announced, has filed a lawsuit with the Administrative Court. We expect a response from the court within a reasonable and legally prescribed period," the company said.
COMPLAINTS, FORMALITIES AND STATEMENTS
"Ramel" was selected as the most favorable contractor for the adaptation project in early November, but there was a possibility of appealing the Ministry's decision within ten days, which "Bemax" took advantage of in the middle of that month.
The Commission for the Protection of Rights in Public Procurement Procedures rejected that appeal at the end of November.
"Bemax" states in its appeal that they oppose the Ministry's selection due to violation of the law, incomplete determination of the situation and incorrect application of substantive law. They claim that they were unjustly excluded and that the reason for this is formalistic, and that it is contrary to the principle of economy and competitiveness.
The company pointed out that adding the word "design" to "execution of works" in the statement cannot be considered a deviation from the subject of the public procurement, as this follows from the requirements. Therefore, they believe that the Ministry reacted too formally.
"They believe that 'Ramel' did not properly fill out the statement in the 'method of submitting the bid' section; because in the indicated part of the statement, in accordance with the instructions for filling out the bid, it stated which part of the procurement subject matter the members of the joint bid are responsible for. It points out that 'Ramel' did not submit a contract on joint performance, that it is unclear on the basis of which 'Ramel' divided the work, that the work was not divided between the members of the joint bid by item. Finally, they propose that the Commission accept the appeal and annul the contested decision, and order the Ministry to eliminate irregularities in the re-procurement...", the Commission's explanation states.
DON'T MISS IT
The Ministry did not respond to this complaint, while the Commission said that they had determined that "Ramel" had correctly identified the bidders and that there had been no violation of the Public Procurement Law.
The Commission states that "Bemax" made the statement incorrectly because they awarded subcontractors the tasks of electrical and mechanical design, although the adaptation is being carried out based on the prepared project. They state that the statement does not contain accurate data, which is grounds for exclusion from the tender pursuant to Article 108, point 5 of the Public Procurement Law.
"The ordering party will exclude the business entity from the public procurement procedure if it determines that it has not submitted the statement of the business entity or the submitted statement does not contain the information and data required by the tender documentation or is improperly prepared," reads that article of the Law.
There was a possibility of initiating a dispute before the Administrative Court against this decision of the Commission, which "Bemax" announced at the time in a statement submitted to "Vijesti".
STATE TREASURY LEFT WITHOUT 147.000 EUROS?
The company "Bemax" said that they received the decision rejecting their appeal with concern and legal condemnation. They claim that the Commission adhered to excessive formalism, confirming their exclusion due to the technical form in the subcontractor's statement, i.e. where instead of "execution of works" it said "design and construction".
"Rejection of our appeal due to this procedural phrase, and this at the moment when we offered the lowest price, confirms that the real goal of the procedure was the elimination of 'Bemax', and not the selection of the most economically advantageous bidder. This decision not only represents a legal precedent in the Montenegrin public procurement system, but also causes direct damage to the state budget, ignoring our offer which was 147.000 euros more favorable than the selected consortium's offer. The company 'Bemax' hereby informs the public that we will not give up on protecting our rights and that we will initiate proceedings before the Administrative Court. "We firmly believe that the Administrative Court will recognize and correct the illegality and financial harm of decisions that were made exclusively to the detriment of the state and in the interest of dubious tender games," the company said.
They say it is “shocking” that the Commission did not consider their other complaints, as they did not prove that there was no reason for their exclusion from the tender. They claim that economic viability was ignored and that the message to companies is being sent - that in Montenegro “quality and the best price are not chosen, but political and formal suitability”.
The company "Bemax" emphasized that in preparing the lawsuit, their legal team will use detailed guidelines and examples from practice that prove that this level of formalism is unacceptable in developed legal systems, and that it is allegedly directly contrary to the essence of the Law on Public Procurement. They announced that during the proceedings they will point out that their case is identical to those in which courts have annulled decisions, when the error was insignificant in relation to the financial benefit of the bidder.
It took the executive branch more than three years to take the first steps to renovate and adapt the old government building, which has been empty for years, to the needs of the SDT and SPO, following several decisions made during the 43rd and 44th governments. In June 2023, the then Minister of Justice Marko Kovač announced that for the Government, "the priority is to move the SDT and SPO to the old government building," and the former Prime Minister also announced the imminent move. Dritan Abazovic, and then the former Minister of Justice Andrej Milović, at the very beginning of his term in the 44th Government.
The Ministry of Public Works has also announced a €458.590 tender for equipping the future premises of the SDT and SPO, or for renovating the interior of the old government building, where these institutions will be located in the future. The tender began in mid-December and will last until mid-January, while the supplier of the equipment will have to guarantee it for at least two years.
The equipment has already been donated by the US Embassy.
The Embassy of the United States of America (USA) purchased and donated some of the furniture and IT equipment, which has long been located in one of the 110 offices of the old government building.
The SDT and SPO, on whose results Montenegro's progress in EU negotiations largely depends, are currently working in cramped offices, where special prosecutors, associates, administrators, and police officers have long been overwhelmed with cases, registers, archives...
The first conclusion of the Government to relocate the SDT and SPO was made on July 6, 2023, and then a donation was agreed with representatives of the European Union Support to the Rule of Law in Montenegro - Eurol III project and the US Embassy in Montenegro in the form of financing the preparation of a feasibility study for the old building, as well as the procurement of office furniture and IT equipment.
According to an earlier report by "Vijesti", the Government later tasked the Ministry of Spatial Planning, Urbanism and State Property to undertake further activities to carry out the adaptation work on the old building, in cooperation with the State Property Administration, but while the papers were in their hands, nothing was done for years.
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