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Although Astra Vagoane invoked several irregularities in the initial award of the contract of the Turkish company Durmazlar, the judges considered that the existence of a single irregularity is sufficient to disqualify the Turkish company.
The National Agency for Public Procurement and the National Council for the Resolution of Claims had issued verdicts confirming the falsification of the result of the largest public procurement in the recent history of public transport in Romania. The first institution, ANAP, reported 6 irregularities in public procurement, all favorable to the Bursa company. The National Appeals Settlement Council confirmed Astra’s appeal, considering that “the calculation of the score was flawed.”
These decisions were challenged, not by the Turkish company, but by the City Council. Finally, the Bucharest Court of Appeal rejected the appeal of the Firea administration. Although Astra Vagoane affirmed that the Turkish company, initially designated the winner, did not present a certificate of technical approval of the tram model offered; who offered a prototype, respectively a tram model that did not circulate on the streets of any European city, illegally completed her offer, the court of appeal limited itself to the last point.
Read also: Problems in the auction for the purchase of the 100 Turkish trams. Final decision of the Justice: the Capital City Council is obliged to re-evaluate the offers submitted
Thus, the judges considered it irrelevant to analyze the rest of the issues invoked, such as the fact that the floor of the tram produced in Bursa is not lowered over the entire length of the car, being higher, on a slope, in the area of the chassis, what That would have been a problem for people. disabled or the fact that the Turkish prototype is equipped with 4 double doors and a single one, the one next to the vatman, and not with 5 double doors, as required in the specifications.
The judges were limited to an irregularity
Specifically, the judges alleged that the Turkish company did not present the documents proving the capacity and delivery schedule of the 55 trams in the first year of the contract.
“The Court observes that the general statement of acceptance of the confirmation of clarifications / modifications / completions of the award documentation does not constitute a confirmation of the delivery schedule provided by the award documentation, as it is a simple general statement, without containing a minimum information on the award schedule.
So how was the entire delivery schedule missing from the technical proposal?
submitted by the successful tenderer, the contracting authority had no right to
accepts the completion of the technical proposal, not finding this approach in any of the
the possibilities listed in the article cited above.
The lack of delivery schedule cannot be assimilated to a minor technical deviation and to any defect in form, therefore, when accepting it, the provisions of art. 209 of Law 98/1996 which establishes: The contracting authority does not have the right to have the appearance of an obvious advantage in favor of a bidder / candidate determined through the clarifications / completions requested ”, as demonstrated in the court’s motivation appellate.
The judges show that the City Council was forced to declare the offer of the Turks unfulfilled
“In addition, the contracting authority, in addition to the express indication of the fact
that the estimated schedule attached to the award documentation is the minimum requirement for
offers expressly providing what is the penalty for not presenting this schedule:
breach of offer.
Therefore, the contracting authority was obliged to observe exactly this express provision and verify that the defendant did not expressly assume, once the offer was submitted, the delivery period, his offer being non-compliant, ”the magistrates also point out.
“As long as the offer is declared unacceptable for not complying with a single
qualification requirements, even if it complies with all the others, it would be useless for the court to analyze the rest of the reasons invoked in the appeal, with respect to other qualification requirements regarding which CNSC sent for reevaluation, such an approach
it is no longer of any interest to the appellants “, concludes the Bucharest Court of Appeal.
The 2-year course of the € 160 million PMB auction
-November 11, 2018, the Bucharest City Council published the tender notice for the purchase of 100 trams;
-On March 15, 2019, the deadline for submitting offers ended, with Durmazlar Makine from Turkey and Astra Vagoane Bucharest the only candidates;
-April 2019: bids were opened, after several postponements and deliberations;
-September 25, 2019 – Technical evaluation completed;
-6 November 2019: Bucharest City Council announced the winner: Durmazlar;
-November 8, 2019: Astra Vagoane contested the result;
December 1, 2019: the CNSC obliges the Bucharest City Council to re-evaluate the offers; PMB immediately appeals to the Court of Appeal the decision of the CNSC;
-July 28, 2020, the Court of Appeals rejects PMB’s action;
-September 8, 2020: PMB notifies Astra Vagoane that it has been named the winner of the tender for the 100 trams.
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