Because of just another case of administrative misconceptions the State Reserve and War-Time Stocks State Agency again can not enter into a contract for security services to strategic sites. The reason is that the tender opened in February this year for the selection of security guards with a budget 13.5 million lev, was declared illegal by the Commission for Protection of Competition (CPC). So the security of the 36 warehouses in nine cities across the country will continue to be taken care by the employees of the agency itself, despite doubts about its resource draining. A curious detail is that in mid-2013, a tender for providing security services to the reserve was announced, but then it failed due to lack of money.
The procedure initiated by the anti-monopoly authority was carried out upon two claims: by in two applications – Komaks 2001 and Viking Nikolov who challenged the extremely high requirements set to the applicants. The first company, owned by Stefan Ivanov, says for instance that in the contract notice unacceptable discrimination, technical and training requirements are set for the selection and evaluation criteria, which lead to a distortion of the procedure. First, what was challenged was the condition for possession of a current security certificate entitling the enterprise to process and store classified information under the protection of classified information act as well as a notarized copy of the authorization of the National Security Agency for access to information classified as confidential or higher. According to the plaintiffs, such certificate is to be issued only upon the conclusion or performance of a contract relating to access to classified information, and is extended only if the holder continues to work under the same or similar contract. In other words, only companies already working with confidential data could apply for the tender of the state reserve.
The same objection was made and the other company – Viking Nikolov, owned by 79-year-old Antitsa Razsipiyska. According to her, however, that requirement is contrary to the Law on the protection of classified information, as Article 54 there explicitly regulates the procedure for the issuing and the period of validity of such certificates.
In response to these allegations the State Reserve and War-Time Stocks State Agency explained that the performance of the contract relates to access to classified information and without the required permits no company can be hired to perform the services. Furthermore, the President of the Agency Emil Kolev argues that in order to carry out inspections of warehouses and on this basis then prepare their bids, applicants must have at the time of applying the right of access to confidential information.
Secondly, Komaks 2001 contested the condition asking contenders to have had – in the last three years – at least two executed contracts for armed security services to strategic objects. According to Article 51 of the Public Procurement Act the employer is entitled to ask the candidates to show a list of contracts for supplies and services performed in the past three years, whose scope can be narrowed down additionally. However, the plaintiffs believe that in this case the legal requirements were violated as the required selection is not related to the subject matter of the contract, but with the object of armed security services.
The two companies are adamant that there were no arguments for the requirement asking participants to have at least 520 employees under labor contracts, on average per year, as well as for the possession of 120 pieces of firearms.
Strange as it may seem, all these claims were ultimately ruled by the CPC as unfounded. The motive is that the contracting authority has the right to put specific conditions, especially when it comes to guarding strategic sites. However, the procedure had shown a number of irregularities that were the reason for its termination. For example, candidates were asked to have not less than 50 owned or acquired by lease patrol cars.
The excessive increase of the requirements through the requirement for applicants to have their own or acquired by lease patrol cars that was introduced by the contracting authority unreasonably restricted the participation of persons in the procedure, who otherwise could meet the quality and objective requirements of the contract, but have patrol cars otherwise acquired, eg on the basis of a hire or rent agreement, says the antitrust authority. According to experts of the Commission for Protection of Competition what is also reasonable is the argument that the methodology for the comprehensive evaluation contains subjective indicators and is contrary to the fundamental principles of the Law on Public Procurement.
The state agency has determined the final evaluation to be obtained through the sum of four indicators: Total offered price for physical security – weighting 50 points; total offered price for maintaining the existing technical security system – with a weight of 10 points; evaluation of the proposed conceptual plan and organization of the physical around-the-clock armed guarding with weight of 20 points, and the evaluation of the proposed conceptual plan of security in case of crisis, natural disasters, accidents, terrorist acts and interaction with the Ministry of Interior – with weight of further 20 points. The proposals of the participants on the first two indicators are numerical and their evaluation can be defined based on a mathematical formula. But for the last two the assessment is made on the basis of expert judgment of each member of the committee. There are no fixed points for them and a range is opened in which two identical bids can get very different evaluations.
In this case, the evaluation of the last two indicators was not consistent with the objective criteria for comparing and contrasting the offers, which in turn would lead to an unreasonable result and subjectivity in the comprehensive evaluation of participants – a flaw that can not be overcome even by the requirement for the expertise level of the jury panel members. In view of the indicators, there was a violation of a an imperative norm of Article 28, paragraph 2 of the Law on Public Procurement, the CPC ruled. As a result, the President of the State Reserve and War-Time Stocks Emil Kolev published on June 6 a decision for termination of the tender. Now, one would have to wait see when and under what conditions the new procedure will be announced.
The BANKER
