Since Greece is a Member State of the European Union, the relevant directives on public procurement do apply. Thus, the Greek Law for Public Procurement evolves following any developments in the European legislation. The Greek legislator has opted for a gold-plating method of transferring the directives to domestic law (i.e., he repeats the terms and exact content of said directives, instead of rephrasing or exploring the margins for adaptation or derogation). Greece is a contracting party, as a Member State of the EU, to the Agreement on Government Procurement of the World Trade Organization (WTO GPA).
Nowadays, the legislation concerning public procurement is mainly contained in Law 4412/2016, which was published in the Government Gazette on 8 August 2016. With this Law, the 2014 Public Contracts Directive and 2014 Utilities Contracts Directive were transposed into national legislation after the expiry of the period for implementation. The conduct of procurement procedures below the threshold is regulated in detail and unified. For procurements both under the threshold and with an estimated value of over €60,000 fundamentally similar rules typically apply.
The special rules set out in Law 3978/2011 concerning contracts in the field of defence and security still apply. The 2014 Utilities Contracts Directive is transposed into Book II of Law 4412/2016, where special rules are set wherever necessary, all the while maintaining extensive references in Book I, where general rules are contained.
In relation to the rules under 2014 Concession Contracts Directive, Law 4413/2016 was also published at the same time. The latter sets the relevant rules that apply on the award and execution of concession contracts.
In the Greek public procurement system there is a plethora of statutory bodies that are involved in controlling and guiding the contracting authorities. Law 4013/2011 established the Hellenic Single Public Procurement Authority (HSPPA), which exercises both advisory and auditing powers. Its most notable powers include giving assent to negotiated procedures with a budgeted expenditure above the thresholds, as well as issuing templates for bid documents and guidelines. Law 4412/2016 established, as an independent authority, the Authority for the Examination of Preliminary Recourses (Remedies Review Body) (AEPP), with the responsibility of examining preliminary recourses filed against acts of the contracting authorities and entities, which were issued in the context of award procedures with an estimated value of more than €60,000. In addition, there is also judicial review, which is now performed on the decisions of the AEPP either by the Council of State (Supreme Administrative Court) or by the administrative courts of appeal, depending on the case. Finally, the Court of Auditors, the Supreme Financial Court, performs the pre-contractual audit, before the signing of public contracts with a value exceeding €1 million. Bodies of centralisation of the procurement procedure are, in the case of public procurements, the General Secretariat of Commerce of the Ministry of Economy, which executes the public procurement programme, as well as the National Central Authority for Health Procurements, which executes central hospital procurement programmes for all of the country's hospitals, especially in the form of framework agreements.
Finally, Article 18 of Law 4412/2018 reiterates and introduces the respective provisions of European law as to the applicable general principles: the principle of equality (equal footing of the economic operators), the principle of transparency, the principle of proportionality and the principle of mutual recognition. The principle concerning the freedom of competition in the field of public procurements is further established and a rule, according to which procurement procedures must not be designed with the purpose of excluding from the rules of public procurements or to artificially restrict competition, is introduced. Furthermore, the rules of protection of the public interest, along with the principle of sound financial management, the protection of individual rights, which aims at avoiding arbitrary interferences on the contractual balance, as well as the principles of environmental protection and sustainable development are introduced.
II YEAR IN REVIEW
In 2019, there were two major legislative initiatives regarding public procurement issues and, in particular, an amendment to Law 4412/2016, which is now the codification of the relevant legislation. It is generally recognised that, due to the extensive amendment of the law on public contracts, which took place with Law 4412/2016, there was a serious difficulty in assimilating the new framework and implementing the public investment programme in an effective and timely manner. Meanwhile, the economic operators also seemed to face similar problems with adjusting. By Law 4605/2019, following the pieces of legislation that had been issued in the previous years, significant interventions were made. Law 4412/2016 sets a certain time limit for the completion of the award procedures by the bodies responsible for conducting them, while procedural regulations were introduced to address practical problems that had arisen during the implementation of the law. Finally, provisions on the procedure for examining recourses by the AEPP where introduced, in the direction of effective preliminary and judicial protection, as well as in the direction of delimitation of the authority's competence. Further parametric amendments were also introduced by Law 4609/2019.
With regard to case law developments, Decision No. 1081/2019 of the Plenary Session of the Council of State is of particular interest, according to which the rules for awarding public contracts do not apply to entities that have an exclusive right, granted to them directly or indirectly by the state, yet the majority of their shares have been transferred to a private individual following a competitive process.
The Legislative Acts of 23 February 2020, 11 March 2020 and 14 March 2020, which were issued for the purpose of dealing with emergencies and needs arising from the covid-19 pandemic, extensively allowed negotiated procedure for the supply of not only medical supplies but also other items necessary for the operation of many contracting authorities and entities to adapt to the new situation (e.g., IT equipment).
III SCOPE OF PROCUREMENT REGULATION
For the provisions of Book I of Law 4412/2016 to apply, two conditions must be met. First, the contracting party is required to be a contracting authority (subjective condition), and second, the contract must have as its object the acquisition of works, goods or services, regardless of whether the works, goods or services are intended to serve the public interest. Especially in regard to the application of the provisions incorporated in compliance with EU law, it is required that the budgeted expenditure exceeds certain thresholds.
For the provisions of Book II of Law 4412/2016 to apply, it is required that the contracting party is a contracting entity (subjective condition), and that the contract has as its object the acquisition works, supplies or services, so long as these works, supplies and services are intended for the execution of activities of public interest. Relevant thresholds apply.
The thresholds – excluding VAT – for the implementation of the provisions of Book I are as follows:
- €5.35 million for public works contracts;
- €139,000 for public supply contracts, service contracts, and contracts for studies, awarded by central government authorities;
- €214,000 for public supply contracts, service contracts, and contracts for studies, awarded by non-central contracting authorities; and
- €750,000 for public service contracts relating to social and other special services.
The thresholds of budgeted expenditure – excluding VAT – for the application of the provisions of Book II (Utilities Contracts) are as follows:
- €428,000 for supplies and services, as well as for design competitions;
- €5.35 million for works; and
- €1 million for public service contracts relating to social and other special services.
Concerning the method for calculating the estimated value, rules familiar under the previous legal regime are reiterated: in the event that the contracting entity consists of separate business units, the total estimated value for all units is taken into account.
When a tender that may lead to the award of contracts in the form of separate sections is held, the total estimated value is taken into account. Special rules are introduced for periodic supplies or services, for special services, such as insurance or banking, as well as for indefinite contracts. Furthermore, the pre-existing exclusion of certain contracts, such as those related to the purchase or lease of land and existing buildings, arbitration services, legal services (albeit with a more precise definition), loans, etc. from the law, is reiterated.
The law clarifies and significantly expands, in the direction of simplification, the status of modification of contracts during their term, an issue for which there are even special provisions related to work contracts. Modification is allowed in the following cases:
- when the amendments, regardless of their monetary value, are provided for in clear, precise and unequivocal review clauses in the original bid documents. These clauses may also include price review clauses or options;
- for additional works or services or goods that became necessary with a limit of 50 per cent of the value of the original contract;
- when the following cumulative conditions are met: unforeseen events, lack of change of the nature of the contract, and price increase not exceeding 50 per cent;
- in the case of substitution of the initial contractor with a new one, as a consequence of an explicit review clause or universal or partial succession of the initial contractor due to corporate restructuring; or
- in the case of non-essential modifications.
It is not necessary for the aforementioned conditions for amendment to be fulfilled, if the amending contract has a value below the thresholds for application of EU law and below 10 per cent of the contract for service and supply contracts and 15 per cent for works.
In this context, the transfer of the contract to a different contractor is also addressed, without any further flexibility on this issue. In addition, Greek law remains strictly in accordance with the established jurisprudence that has been in place since the 1990s, which does not allow for changes of the bidder during the period between the submission of a tender and the award.
IV SPECIAL CONTRACTUAL FORMS
As special contractual forms, in the context of Law 4412/2016, we can cite the following.
The innovation partnership is a special form of award aiming at the award of an innovative product, service or work, as well as at their subsequent purchase by the contracting entity, provided that they meet the performance and maximum cost levels agreed between the contracting entities and the participants.
There are provisions that stipulate the use of dynamic purchasing systems for commonly used purchases, the characteristics of which, as generally available on the market, meet the requirements of the contracting entity.
Contracting authorities may resort to electronic auctions, in which new, reduced prices or new values, or both, are presented in relation to certain elements of the bids. The electronic auction is organised in the form of a repetitive electronic process, conducted after a preliminary full evaluation of the bids, allowing their classification on the basis of automatic evaluation methods.
With regard to subcontracting, it is expressly provided that the contracting entity shall ask the bidder to state in its bid the part of the contract that it intends to assign to third parties in the form of subcontracting, as well as the subcontractors it proposes.
Awarding a contract in the form of sections and limiting the sections for which a bid may be submitted or a contract may be awarded are both permissible. Contracting authorities shall specify on the contract notice or the invitation to confirm interest whether the bids are submitted for one, more or all sections. Contracting authorities may also limit the number of sections that can be awarded to one bidder, even if the bids may be submitted for many or all of the sections, on condition that the maximum number of sections per bidder is specified in the contract notice or the invitation to confirm interest.
With regard to public-private partnerships (PPPs), there is already a legal framework in Greece set out by Law 3389/2005, which determines the minimum content of PPP contracts. The applicable legal framework is clear and flexible, thus decreasing the need for aberrations and subsequently the need to appeal to Parliament for ratification (the partnerships are governed primarily by the provisions of the partnership contracts and in addition by the provisions of the Civil Code). A slew of problems, which in the past required special legal regulations (expropriations, issuance of permits, protection of the environment, etc.), are now dealt with by special provisions. However, no extensive recourse to the general rules on PPPs was made. On the contrary, in any process of granting a public service or public work or infrastructure or privatisation, special regimes have been introduced, while in the vast majority of cases the process of selecting a partner or concessionaire from the private sector is followed by the legal ratification of the relevant contract.
The recent rulings of the Plenary Session of the Council of State (1077-82/2019) have given a significant indication concerning the status of the contracts of the companies in which an individual has entered with a majority shareholding. In this case, and provided that a tender has been held for the selection of the private partner, the procedures for awarding conducted by the entity are not subject to the rules on public procurement, nor to the competence of the relevant authorities and in particular the AEPP.
V THE BIDDING PROCESS
Contract notices include the information provided for in the form of standard documents, which are transmitted to the EU Publications Office for publication. Publication at national level is achieved through the Central Electronic Public Procurement Registry (KIMDIS). All communications as well as all information exchanges between the contracting authority and the economic operators, particularly the electronic submission of tenders, are done through the National System for Online Public Contracts (ESIDIS). This rule applies to contracts with an estimated value of more than €60,000, excluding VAT.
The contracting entities may, for the purpose of selecting contractors, proceed with the following award procedures: open procedure, restricted procedure, competitive procedure with negotiation and previous tender notice, competitive dialogue, or innovation partnership. Contracting entities may engage in a procedure with negotiation, without prior publication, in certain, explicitly and exclusively prescribed, cases.
In the open procedure, any interested economic operator can submit a tender in the context of a contract notice. In the closed procedure, any economic operator may submit an application for participation in the context of a contract notice, providing information on the quality selection criteria. Only those economic operators invited by the contracting entity, after the evaluation of the information provided, may ultimately submit a bid. The contracting entities may limit the number of suitable bidders. In the competitive procedure with negotiation and previous tender notice, any economic operator may submit an application for participation in the context of a contract notice, providing information on the quality selection requested by the contracting entity. Only economic operators invited by the contracting entity are able to take part in the negotiations.
Negotiation without prior publication of a contract notice is allowed in the following cases:
- if a previous tender was fruitless;
- in the case of contracts aimed exclusively at research, testing, study or development and not seeking to make a profit;
- in the case of works, services and supplies that may be provided by a specific economic operator for the exclusively described reasons;
- in the case of an urgent need due to events unforeseen for the entity;
- for the purchase of goods or services on particularly favourable terms either from a supplier that permanently ceases its commercial activities or by the liquidator of an insolvency procedure, a court settlement or a similar procedure;
- when the products are manufactured solely for the purposes of research, experimentation, study or development (however the contracts that are awarded do not include quantity production to establish commercial viability or to recover research and development costs);
- for additional deliveries;
- for new works or services that involve the repetition of previous similar works or services; and
- for the purchase of goods from stock exchanges.
In the competitive dialogue, the process is similar to the procedure with negotiation, with prior contract notice, but at the end there is a dialogue that aims at expanding and identifying the most appropriate means to satisfy the needs of the contracting entity.
For public contracts below the threshold, the contracting authorities may resort to, inter alia, direct award procedures for an estimated value equal to or less than €20,000 and summary tenders for an estimated value equal to or less than €60,000.
iii Amending bids
In the case of procedures for the award of public supply or service contracts, the competent advisory board may propose, following a reasoned recommendation, that the contract be awarded in full or in a larger or smaller quantity in proportion to the percentage specified in the contract documents. This percentage cannot exceed 30 per cent in the case of tenders with a budget up to €100,000 including VAT and 15 per cent in the case of calls for proposals amounting to €100,001 or higher including VAT. To award part of the quantity below the percentage specified in the contract documents, prior approval by the supplier is required.
The jurisprudence recognises to a limited extent the ability of the nominated bidder to offer a discount at the award stage, without affecting the competition.
i Qualification to bid
Contracting authorities may establish and manage a pre-selection system for economic operators. This is a system corresponding to the supplier table. It must be ensured that the economic operators can apply for pre-selection at any time. When a contract notice is announced through the pre-selection system, either a closed tender is held or exclusively the economic operators included in the pre-selection table participate.
Another issue is the one regarding the grounds for exclusion, that is, the reasons that impose or allow the exclusion from participating in further proceedings for the sake of protecting the moral and legal integrity of the award procedure. At this point, the provision of Article 73 of Law 4412/2016 is important. Article 73(1) provides for a known list of criminal offences justifying exclusion (e.g., participation in a criminal organisation, fraud, etc.) and states that a final (court) ruling, and not an irrevocable one, is required. According to the same article, grounds for exclusion may be sought for all members of the board of directors of the bidder. Candidates who have not acquired a tax certificate or a certificate of insurance are also excluded in accordance with the provisions of the country of establishment or national law.
Optional grounds for exclusion are also provided. The contracting authority may exclude any economic operator from participating in a public procurement procedure:
- if it can prove breach of its current environmental, social security and labour legal obligations;
- if the economic operator is bankrupt or has been subjected to resolution proceedings or special liquidation, or its affairs and assets are under compulsory administration by a liquidator or by the court, or it has entered into an arrangement with creditors or has suspended its business activities, or if it is in any similar situation resulting from a similar procedure;
- if the contracting authority has sufficient evidence to suggest that the economic operator has entered into agreements with other economic operators in order to distort the competition;
- if a case of conflict of interest cannot be effectively resolved using other, less intrusive, means;
- if a situation concerning the distortion of competition by the previous participation of the economic operators in the preparation of the procurement process cannot be effectively treated using other, less intrusive, means;
- if the bidder has shown serious or recurring misconduct in the performance of a substantive requirement under a previous public contract resulting in an early termination of the previous contract, compensation or other similar penalties;
- if the economic operator has been found guilty of serious misinterpretation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria, has withheld this information or is unable to provide the required supporting documents;
- if the economic operator attempts to unduly influence the decision-making process of the contracting authority in a fraudulent way, to obtain confidential information that may confer an unfair advantage or to negligently provide misleading information; and
- if the contracting authority can prove that the economic operator has been guilty of a grave professional misconduct, which compromises its integrity. A right to counter-evidence is granted to the bidder.
It is also possible to exclude an economic operator from the ongoing and future procurement procedures for a reasonable period of time.
ii Conflicts of interest
When members of the staff of the contracting authority that are involved in the procedure for signing public contracts have a direct or indirect financial or other personal interest that could be perceived as an element affecting their impartiality and independence, a conflict of interest arises.
With regard to the tenders carried out on the basis of Law 4412/2016, 'interests' are considered, among other things, according to the law, to be the existence of a contract of employment, the execution of works, the rendering of services or the sale of products between a member of the board of the contracting entity and an economic operator involved in the procurement process, for the duration of a period starting 12 months before the initiation of the procurement process and expiring on the date the contract is concluded.
The last resort in dealing with a conflict of interest is to exclude the participant associated with the person with whom the conflict of interest occurs. An exclusion issue would be raised if, on the one hand, the remaining procedural guarantees were not met, and on the other hand, it was proved that there was influence at any stage of the tender, including the formulation of the issues of the declaration.
iii Foreign suppliers
Eligible to participate in procurement procedures regarding the contracts referred to in the WTO GPA Annexes are natural or legal persons established (1) in an EU Member State; (2) in an EEA Member State; or (3) in third countries that have signed and ratified the WTO GPA. Especially in the case under point (3), the contracting entities reserve to the economic operators of these countries treatment equally favourable to the treatment given to economic operators established in the EU and in third countries that do not fall under the aforementioned case but have concluded unilateral or multilateral agreements with the EU concerning public procurement procedures. This provision also defines the circle of economic operators who are entitled to participate in procurement procedures and, respectively, companies established in countries other than the aforementioned, are excluded. This refers, in practice, predominantly to the People's Republic of China.
One question that arises is whether contracting authorities can expand the circle of those eligible to participate. The AEPP ruled that such an extension, with reference to countries that are observers of the WTO GPA, such as China, is not prohibited. Of course, there has been no case law on the matter so far, nor has there been a case concerning the contracting authorities and the provisions of Book I, as in the case of the latter the use of templates is mandatory and deviation from the aforementioned rule is not allowed.
i Evaluating tenders
The contracting authorities base the award of contracts on the most economically advantageous tender. The most economically advantageous tender is determined based on the price or the cost, using a cost-effectiveness approach method, and may include the optimal value for money. However, the award criteria do not result in the provision of unlimited freedom of choice to the contracting entities.
The award criteria are determined by the contract documents. The contracting entity specifies the relevant weighting, unless the criterion is solely the price. The grading of the criteria is fully and specifically justified and includes, in addition to the grading, the wording of this reasoning per criterion.
The process of concluding a contract (submission, opening, evaluation of bids and applications for participation, selection of participants, submission of tender documents and contract, and determination of time limits for the completion of all or individual procedures) shall be carried out in accordance with the provisions of the Articles 92 to 100, 103 and 104 of Law 4412/2016.
Moreover, the Law prescribes the possibility of clarification or completion of supporting (and other) documents submitted within a reasonable time limit that cannot be shorter than seven days. The feature described above applies to both the supporting documents and the technical bid. This possibility is precisely defined by law. The provision of the possibility of clarification or supplementation is obligatory for the contracting entity, if the bidder is about to be excluded.
ii National interest and public policy considerations
Considering that Greek public procurement law is mainly in line with European directives, there is little room for national or local preferences, while at the same time the social and environmental aspects are very important and particularly taken into account when determining or examining the grounds for exclusion.
The administration is, in principle, free to formulate at its discretion the terms of the declaration, determining specific technical characteristics from a quantitative and qualitative point of view on the basis of its respective needs, and the establishment of specifications that the contracting authority deems appropriate or necessary for the purpose of serving its needs cannot be construed as violating the provisions and fundamental principles of EU law, since by their very nature the specifications in question are supposed to limit the circle of the economic operators that are able to fulfil the necessary requirements and participate in the public tender.
The provisions of Law 4412/2016 now explicitly provide that the technical specifications established by the declaration are formulated not only with reference to European, international or national standards, pursuant to the specific distinctions of the above provisions, but also with reference to performances or operational requirements. Contracting authorities have the broad authority to formulate technical specifications with additional features regarding the goods to be procured, in addition to those required in order to obtain the CE mark, through a certificate issued by a certified body. This is also confirmed, from a legal point of view, by their power to set technical specifications by referring to performances and operational requirements and not just by referring to certification standards such as the CE mark.
In any case, the contracting authorities are required to both state in the declarations that it is permissible to accept products with equivalent characteristics, when there is a reference to a particular method or standard, and to accept such products that possess equivalent characteristics. However, the burden of proof lies with the economic operator.
VIII INFORMATION FLOW
As almost all award procedures take place electronically, all bidders have access to the bids of the other participants, and can even download them in order to inspect them in detail. However, bidders are entitled to – and the tender system allows them to – have certain documents or items classified as confidential, provided that this is required for reasons of confidentiality protected by law, as is, for instance, trade secrecy in relation to certain cost components of the bid.
The obligation to provide information is also extensive, as it is necessary to notify the relevant acts by which the contracting authority promotes or completes the tender to those who have not been definitively excluded. On the same note, an exclusion is also definitive when the application for annulment of the act by which the economic operator was excluded is rejected.
IX CHALLENGING AWARDS
The procedure of challenging and reviewing the acts (decisions) of the contracting authorities with which a particular bidder is harmed, either because it is excluded or because an offer that should have been rejected is instead accepted, is laid out in Book IV of Law 4412/2016. This Book is inspired by the rules that applied until then concerning the transposition of the Remedies Directives, yet it also includes some important innovations.
The provisions of Book IV shall apply to disputes arising in the legal process of awarding contracts with an estimated value exceeding €60,000, excluding VAT, regardless of their nature.
The law provides for the lodging of recourse before the AEPP, from which the affected bidder is entitled to request interim protection, the annulment of an illegal act or omission on behalf of the contracting authority, or the annulment of a contract that has been illegally concluded.
The relevant time limits for the aforementioned recourse are as follows: in the case of recourse against an act of the contracting authority, (1) within 10 days from the date of notification of the contested act to the interested economic operator, if the act was notified by electronic means or facsimile, or (2) within 15 days from the date of notification of the contested act to the interested economic operator, if other means of communication were used; otherwise (3) within 10 days from the full actual or presumptive knowledge of the act that harms the interests of the economic operator. Especially in the case of recourse against an invitation to tender, full knowledge of the invitation is presumed after 15 days from its publication in KIMDIS. In the case of an omission, the time limit for lodging a preliminary recourse is 15 days from the day following the commitment of the contested omission.
Any interested party whose interests are affected is entitled to lodge an intervention before the AEPP, within a mandatory time limit of 10 days from the notification of the recourse, presenting the reasons why the recourse in question must be dismissed.
For the preliminary recourse to be admissible, a duty must be paid by the applicant to the state. The amount of the duty shall be at the rate of 0.5 per cent of the budgeted value (excluding VAT) of the relevant contract. The amount of the duty cannot be less than €600 or more than €15,000.
ii Grounds for challenge
Any infringement of the European or national legal framework, as well as of the invitation to tender, could be grounds for recourse. Furthermore, it is required for the challenged infringement to be detrimental to the economic operator.
Both the application for suspension of execution and the application for annulment before the competent courts are considered as legal remedies against a decision issued on a preliminary recourse by the AEPP.
It follows from the above that in the case of contracts with an estimated value above €60,000, the lodging of a preliminary recourse constitutes a requirement for the admissibility of the legal remedies that may follow.
The administrative court of appeal corresponding to the seat of the contracting authority has (territorial) jurisdiction to hear and determine the application for suspension and the application for annulment. The Council of State has exceptional jurisdiction in cases of (1) procedures governed by the 2014 Public Contracts Directive, which also have an estimated value above €15 million; and (2) procedures governed by the 2014 Utilities Contracts Directive and 2014 Concession Contracts Directive.
The law stipulates that claims for damages are heard and determined by the competent courts, depending on the nature of the contracting authority.
Law 4412/2016 has so far undergone a significant number of changes and amendments, which may be indicative of certain weaknesses in its initial processing, or even of a difficulty on behalf of the contracting authorities to meet such a detailed framework. As we mentioned in the introduction of this chapter, in the context of dealing with the pandemic caused by covid-19, the conclusion of public service contracts and public supply contracts by direct award or under a negotiated procedure was generally allowed (to a large extent), regardless of the conditions set by the European directives for the application of the negotiation process. A large number of contracting authorities are already concluding such contracts on a large scale, so that after the end of the state of emergency, the relevant needs for the conclusion of similar contracts will have already been met under the generally applicable regime.
Another issue, hints of which already existed, is the supply of products from third countries and especially from China, to which many European countries, including Greece, have massively resorted at this point. This necessary direction is contrary to the pre-existing one that leaned towards the restriction of such supplies, particularly through the Commission Communication of 13 August 2019 entitled 'Guidance on the participation of third country bidders and goods in the EU procurement market' (2019/C/271/02).
1 Emmanuel J Velegrakis is a partner at KPV Legal. The author would like to thank Eleni Daskalaki, trainee lawyer at the firm, for her contribution to the editing of this chapter.