MEDICAL REAGENTS FOR THE LABORATORY OF ŠABAC GENERAL HOSPITAL (2017)
As in other similar cases of public procurement of blood test cards and reagents, this case study also refers to public procurement which includes the so-called closed systems, so everything that was said in other analysis in terms of ensuring competition applies here as well.
Therefore, this is yet another case in which the contracting authority conducted a public procurement of reagents exclusively for certain analyzers, which limited the competition and enabled the bid to be submitted only by the manufacturer himself or his local market representative. Also, in this case, the contracting authority rejected the suggestion that the interested person stated in his request for additional clarifications of the tender documentation, that the contracting authority should enable competition by allowing bidders to offer other manufacturers’ reagents, providing at the same time compatible analyzers for free use.
In addition, the contracting authority subsequently amended the tender documentation, asking the bidders to submit the proof, i. e. the confirmation from the manufacturer of the analyzer for which the reagents are requested that the offered reagents are compatible with the model of the analyzer on which they will be used, whereby he unequivocally confirmed and strengthened his intention not to allow competition.
However, the most peculiar feature of this specific case is the behavior of the contracting authority after the submission of the request for protection of rights: the contracting authority completely ignored the submitted request, continued the procurement procedure and concluded the contract with the only bidder who could offer the required reagents at a price that was almost identical to the estimated value of the public procurement.
Namely, in the tender documentation the contracting authority foresaw the possibility of submitting a request for protection of rights electronically to the specified e-mail addresses. This opportunity was used by a potential bidder “Yunycom” Ltd Belgrade, which on April 26, 2017. submitted a request for protection of rights to the contracting authority, submitting at the same time copies to the Republic Commission. In the stated request, the Applicant pointed out the shortcomings of the tender documentation in terms of ensuring competition, i. e. the fact that only one bidder could participate in the procedure – “Makler” Ltd. Belgrade, which is an authorized distributor of the manufacturer of the analyzer in question and the holder of ALIMS licenses for the requested medical devices.
In accordance with the Law on Public Procurement, the contracting authority was required to publish a notice of the submitted request on the Public Procurement Portal and on his website within two days from the request submission day. Having that in mind, the contracting authority should have published this notice by April 28, 2017, which, however, he did not do. In order to check what was happening with his request, the Applicant contacted the contracting authority by phone only to find out that the request for protection of rights in the public procurement procedure in question hasn’t been submitted at all!
Due to this fact, on May 08, 2017 the Applicant submitted an amendment to the request for protection of rights, stating that the request for protection of rights was electronically submitted to all e-mail addresses listed in the tender documentation. At the same time the Applicant submitted an electronic confirmation of receipt of e-mail that he received from one of the above addresses on April 26, 2017 at 12:20 p.m.
After this, the Republic Commission (only) on June 19, 2017 requested the contracting authority to write a statement on the actions he took upon the submission of the request for protection of rights. In its response to the request of the Republic Commission, the procuring entity stated the following:
- that he hasn’t received any request for protection of rights in the form of a letter or electronically by the day of bid opening,
- that it is true that on April 26, 2017 the Applicant submitted an e-mail containing a notification on the submission of a request with attachments,
- that this e-mail was sent to the address firstname.lastname@example.org and that the message was displayed on the computer of the person using the mentioned address, but that the attachments from the e-mail were “probably damaged” because he failed to open and read them. As a result, the said person – assuming that it was only a notice of submission of the request and that it will be delivered by regular post – “deleted the message from the computer”;
- that the contracting authority did not send a confirmation of receipt of the request for protection of rights, but that it was an electronic confirmation that the message has been displayed on the computer screen;
- that since the beginning of that year and due to server failures the client has been experiencing technical problems with receiving and sending emails, which is the exact reason he insisted on submitting requests in written form.
During all that time, however, the contracting authority continued the public procurement procedure, passed the Decision on awarding the contract to “Makler” Ltd. Belgrade, published it on the Public Procurement Portal on May 16, 2017, concluded a public procurement contract with the same bidder, and published the notice about that on the Public Procurement Portal on May 18, 2017. Of course, the selected bidder was the only one who had submitted a bid in the procurement procedure in question, and the price he offered differed from the estimated value by only 831.48 dinars!
After it received the statement and the accompanying documentation sent by the contracting authority, on October 4, 2017 the Republic Commission granted the Applicant’s request for protection of rights and annulled the public procurement procedure in its entirety due to formal violations of several significant provisions of the Public Procurement Law relating to the submission of requests for protection of rights and obligations in this regard. The Commission also made a separate decision on December 22, 2017 and annulled the contract concluded between the contracting authority and the bidder “Makler” Ltd.
It is important to note here that the decision of the Republic Commission was delayed, although it was legally grounded. Since the request for protection of rights was submitted on April 26, 2017, and the supplement to the request on May 8, 2017, it is incomprehensible why the Republic Commission waited until June 19, 2017 to request a statement from the contracting authority about his actions related to the submitted request, and then made a decision on this request on October 04, 2017, while the decision on annulment of the contract wasn’t made until December 22, 2017. Bearing in mind that the contract was concluded on May 16, 2017, and that the tender documentation provided for very short deadlines for successive deliveries of reagents (no longer than two days from the request of the customer and receipt of the purchase order), such late Commission’s decisions created a risk of contract execution. Therefore, in this sense belated justice can only be treated as partial justice.