MAINTENANCE OF COPIERS AND MULTIFUNCTIONAL DEVICES (2019)
The subject public procurement of maintenance services for photocopiers and multifunctional devices is one in a series of cases in which the contracting authority restricted competition by formulating additional conditions that are not logically related to the subject of public procurement. The peculiarity of this case is reflected in the following: despite the fact that the decision of the Commission for Protection of Competition established the existence of long-standing practice of rigging similar public procurements, the Republic Commission a priori accepted the contracting authority’s contradictory arguments and rejected the request thus allowing the illegal behavior of market participants.
Namely, in the specific case, there was a problematic additional condition, which required the bidders to have the authorization of the manufacturer (or his representative) of Konica Minolta devices (for Lot 1), or the manufacturer (or representative) of Canon devices (for Lot 2) for the maintenance and servicing of the equipment in question.
Considering that this additional condition violated the principles of ensuring competition and equality of bidders, the interested person “Birotehnika d.o.o.” Jagodina submitted a request for protection of rights, pointing out that the contracting authority thus enabled the manufacturer (or the local representative office) to directly influence who can participate in the public procurement procedure by issuing or not issuing the authorization. The interested party also pointed out that the local representative office of the manufacturer Konica Minolta manipulates the issuance of these certificates, and that it issues them to only one bidder – the company “Biro Print Sistemi d.o.o.” from Belgrade.
Responding to these allegations, the contracting authority explained its objective needs for this condition and its connection with the subject of public procurement by the fact that most of the devices for which the maintenance service is procured were recently purchased, and that in case they are maintained by the bidder without proper authorization, the manufacturer’s warranty wouldn’t be valid anymore. On the other hand, the contracting authority did not ask for authorization for Xerox devices (although they were under warranty), but it was required for Canon devices that were not under warranty: this was explained by the fact that in both lots the authorization was requested only for those devices that were majorly represented among the devices for which the service was procured! The contracting authority therefore justified the insistence on authorization for Konica Minolta and Canon devices with two completely contradictory arguments.
The argument that most of the devices for which the maintenance service is procured is within the warranty period could be accepted in terms of the logical connection with the subject of public procurement if the authorization had been indeed requested only for the devices within the warranty period. On the other hand, the representation of individual devices in the structure of devices for which a service is procured is completely irrelevant from the aspect of justification of seeking authorization and can in no way be a justification for insisting on this additional condition. So, even if there was only one Xerox device under warranty, if the contracting authority requested authorization for Konica Minolta devices because they were under warranty, he had to apply the same principle to Xerox devices as well. He was also not allowed to ask for authorization for the maintenance of appliances that were not within the warranty period.
However, the Republic Commission refused the aforementioned request for protection of rights, fully accepting the arguments of the contracting authority. The failure of the Republic Commission to carefully consider the allegations of the request for protection of rights is even more surprising due to the fact that only a few days before the call for tender, the Commission for Protection of Competition issued a decision establishing that Konica Minolta’s representative office for Serbia along with other 7 companies (including “Biro Print Sistemi” doo from Belgrade and “Birotehnika” d.o.o. from Jagodina) violated the competition by coordinating participation in public procurement of Konica Minolta office equipment maintenance services for a longer period of time, and they did so by manipulating the issuance of authorizations of this manufacturer, among other things. This decision was indisputably known to the Republic Commission, and it was also pointed out by the interested person in the request for protection of rights. But instead of careful examination of the allegations of the interested person, in the light of the decision made and the established facts, the Republic Commission just plainly accepted the completely illogical and contradictory explanation of the contracting authority without going into the essence of the problem and rejected the request for protection of rights. In its decision, the Republic Commission only referred to the decision of the Commission for Protection of Competition, stating that “although it raises suspicion, it does not necessarily refer to the conclusion that the contracting authority defined the additional condition in a manner contrary to the Law on Public Procurement.” And in its explanation of the decision which, according to the order of the Republic Commission, “only” raised doubts about the restriction of competition by the contracting authority, the Commission for Protection of Competition methodically presented the manner in which these companies participated in defining technical specifications for public procurement procedures for the maintenance of Konica Minolta’s office equipment, how they mutually agreed on market sharing, i.e. who will participate in which public procurement procedure, how they manipulated the issuance of authorizations for participation in certain public procurement procedures, etc. Among other things, this decision also cites the electronic communication of these companies, which shows the well-established practice of rigging public procurements, but also the arrogance of its actors who, although aware that they act illegally, completely openly and without hiding wrote things such as: “…We can always help you with advice on how to write them to eliminate competition as much as possible ”; “In these situations we can appeal not to kill the price”; “… My request, which you do not have to listen to, is not to participate in this tender so that we do not lower the price”; “… The contracting authority sent an appeal (more a request than an appeal) to provide another valid offer”; “If you need a certificate, I can only issue it to you so you have no problems”; “The call for tender is out, authorization is needed, so let me know if anyone asks, Birolinija will participate”, “… Let them know that we have prepared the tender and that we are participating”, and so on. It is simply unbelievable how any of this was not enough for the Republic Commission to carefully consider the allegations of the request for protection of rights and notice the inconsistency in the arguments of the contracting authority.
This attitude of the Republic Commission towards the decision of the Commission for Protection of Competition is an alarming indicator of the lack of cooperation between independent control bodies in Serbia, which makes the purpose of their existence completely meaningless and enables such and similar abuses in the future. This is also confirmed by the public procurement in question, in which the contract for lot 1 was awarded to the bidder “Biro Print Sistemi d.o.o.” from Belgrade (exactly the company that was indicated in the request for protection of rights), whereby in addition to the selected bidder, only “Birotehnika d.o.o.” Jagodina submitted a bid for lot 1.: this offer was, however, rejected precisely because it lacked the valid manufacturer’s authorization for servicing Konica Minolta devices. At the same time, the offer of the selected bidder was 9,500,000.00 dinars more expensive than the offer made by “Birotehnika d.o.o.” Jagodina.