The Greek Law 4412/2016 on Public Procurement
The law on public procurement (Law 4412/2016, Greek Government Gazette A 147/08.08.2016), under which the Directives 2014/24/EU and 2014/25/EU were incorporated into the Greek legal order, imposed on the Contracting Authorities the use of the online platform of the National Public Procurement System at all stages of public tenders with an estimated value of more than sixty thousand euros (60.000€), excluding VAT. The law consists of 379 articles that cover all stages of public procurement from the conditions for the participation of the Economic Operators to their judicial protection during the stage after the award of the contract.
The Eligibility to Participate in Greek Tendering
In Greek tendering procedures, enterprises with head offices in the following locations are eligible to participate:
- The member states of the European Union (Austria, Belgium, Bulgaria, Esthonia, France, Germany, Denmark, Greece, United Kingdom, Ireland, Spain, Italy, Netherlands, Croatia, Cyprus, Latvia, Lithuania, Luxemburg, Malta, Hungary, Poland, Portugal, Romania, Slovakia, Slovenia, Sweden, Czech Republic, Finland)
- Iceland, Liechtenstein and Norway, as member states of the European Economic Area (EEA)
- Armenia, Canada, Hong Kong, Israel, Japan, South Korea, Moldovia, Montenegro, New Zealand, Singapore, Chinese Taipei, Ukraine and the United States, as third countries that have acceded to the Agreement on Government Procurement (GPA), which was ratified in Greece by Law 2513/1997. However, in order for these countries to participate in government tenders, the contract to be awarded should be covered by Annexes 1, 2, 4 and 5 and the General Notes to the European Union’s Appendix 1 to the GPA. At this time, the ratification of the agreement is set to pass by Albania, Australia, China, Georgia, Jordan, Kyrgyzstan, Oman, the Russian Federation, Tajikistan and the Former Yugoslav Republic of Macedonia.
- In countries that have concluded bilateral or multilateral agreements with the European Union on public procurement
Tendering of Foreign Enterprises for Greek Public Sector Contracts
In accordance with Law 4412/2016, a great opportunity has opened for foreign enterprises--especially those based in Bulgaria--to tender for Greek public sector supply contracts, under which the delivery of the supplies will be conducted in Northern Greece. Companies based in Albania and the Former Yugoslav Republic of Macedonia, in which the GPA ratification procedure is at an advanced stage, will soon be able to participate in Greek government tenders too. However, the preparation of a foreign enterprise for an offer submission should begin immediately after the publication of the contract notice in order to give enough time for all necessary supporting documentation of the enterprise to be collected, marked with the Hague Convention (apostille) stamp and translated into Greek by a Greek lawyer on time.
The Stages of Public Tenders
Public tenders are divided into two stages according to the submission of documents by the Economic Operators: the submission of the technical and financial offers (two-envelope system) and the submission of the contract award supporting documents. The Economic Operators first upload their technical and financial offers to the online platform into separate folders, and if they are awarded the contract, they are requested by the Contracting Authority to upload their contract award supporting documents. In principal, the Economic Operators’ technical offers are opened, and if the Contracting Authority considers that they meet the requirements of the contract notice, the opening of the financial offers follows. Once the financial offers have been checked by the Contracting Authority, the supply, services or work contract is awarded to the Economic Operator(s) that submitted the most economically advantageous offers. Subsequently, a time limit is set for the successful tenderers to submit their contract award supporting documents. Once those documents have been checked, the successful tenders are called to sign contracts with the Contracting Authority.
The ESPD and SSDF
The 2014/24/EU and 2014/25/EU Directives have facilitated the participation of companies in government tenders throughout the EU through the implementation of a common legislative framework in all member states. According to this philosophy, and in compliance with Article 59 of the 2014/24/EU Directive, the Greek Contracting Authorities accept at the stage of submission of the technical offers, depending on the contract budget, either the European Single Procurement Document (ESPD) (paragraph 1, article 79, Law 4412/2016) or the Standard Statutory Declaration Form (SSDF) (paragraph 4, article 79, Law 4412/2016). The goal of the European Directives is the commitment of the Economic Operators to the Contracting Authorities that they meet the requirements set by the call for competition notice by filling out and submitting these documents. In this way, the tenderers save time as they are free from the obligation to collect and/or translate the supporting documents for the competition. The Economic Operators provide these supporting documents only if they are awarded the supply, work or service.
Example: An enterprise (Economic Operator) of Greek interests based in Plovdiv, Bulgaria, took part in a public tender for a one-year food supply to a hospital in Bucharest, Romania, (Contracting Authority), with a total contract budget of one million euros (1.000.000,00€). The enterprise participated in the tender by including in its technical offer folder ONLY the European Single Procurement Document (ESPD), by which it declared that it meets the requirements of the contract notice as an Economic Operator. After the opening of the tenderers’ financial offers, the aforesaid enterprise was declared a successful bidder for the supply of three kinds of products from the group of vegetables and two kinds of products from the group of poultry. After having been declared a successful bidder, the enterprise was invited by the Contracting Authority to present all its translated legal and supporting documents and sign the supply contract.
The Greek Reality of Public Tenders
In Greece, instead of simplifying the procedure of the participation in public tenders, Law 4412/2016 brought the opposite results. Most Contracting Authorities haven’t yet adapted to the spirit of the new European Directives, requiring Economic Operators to include in their technical offers’ folders, along with the ESPD and SSDF, all the other supporting documents requested by the previous legislative framework as well. Therefore, bureaucracy has been intensified rather than limited.
Common Causes of Exclusion of Economic Operators from Public Tenders
It is often the case that an Economic Operator is excluded from the second stage of the tender procedure (opening of financial offers) either by direct decision of the Contracting Authority or following a preliminary opposition filed against them by another Economic Operator, due to the incompleteness of their technical offer folder. Failure to present a supporting document, submission of documents other than the requested ones, error in law as regards the right to participate in the public tender, incomplete text of an affidavit, incorrect completion of the ESPD and the SSDF, use of copies of documents uncertified by a lawyer, incorrect document digitization and uploading of documents into the incorrect online folders are common causes of exclusion of Economic Operators. Exclusion for the above reasons might be the result of misinterpretation of the call for competition notice, due to ignorance of the Greek legislative framework for public procurement.
Example: The enterprise of the previous example, after successfully participating in the tender conducted by the Bucharest Hospital, wished to participate in a tender for the supply of equal budget value conducted by a hospital in Thessaloniki, Greece. In addition to the ESPD, the Contracting Authority, with scattered references in the call for competition notice, requested that the Economic Operators include in their technical offer folder ten certificates from public authorities and four affidavits. At the same time, there were several ambiguities in the contract notice that needed clarification. Even though the enterprise demonstrated–as much as possible–due diligence in the preparation of its technical offer folder, it was excluded from the next phase of the procurement procedure because it did not include an affidavit of its legal representative, the presentation of which was not clearly stated in the call for competition notice. At the same time, the enterprise lost time and money to collect the extra supporting documents that had to be submitted along with the ESPD in the technical offer folder.
Inadequate Audit of the Economic Operators’ Supporting Documents by the Contracting Authorities
Several times, the Contracting Authorities do not thoroughly audit the tenderers' supporting documents, and therefore, unlawfully accept offers that do not meet the requirements of the contract notice. This is largely due to lack of specialization and training of the staff that composes the Contracting Authorities, as well as to the mindset that all tender offers are lawful, unless otherwise judged by the Authority for the Examination of Preliminary Oppositions (AEPO) and the Administrative Courts. In the latter case, if an Economic Operator considers that a competitor was illegally passed to the next stage of the tender procedure, it should seek the cancellation of the relevant decision of the Contracting Authority by filing a preliminary opposition to the AEPO.
Preliminary Opposition to the Authority for the Examination of Preliminary Oppositions (AEPO)
During the public procurement procedure, the Economic Operators that have suffered damage as a result of an act or omission of the Contracting Authority have the right to file a preliminary opposition before the Authority for the Examination of Preliminary Oppositions (AEPO). In the event that the contested act of the Contracting Authority is notified to the Economic Operator concerned by electronic means or by fax, the time limit for the preliminary opposition filing is 10 days from the notification. Along with the filing of the preliminary opposition, the applicant should pay a government fee that cannot be less than six hundred euros (600.00€) or more than fifteen thousand euros (15,000.00€), resulting from the product of the contract’s total estimated budget (excluding VAT) multiplied by 0.5%. In the case that an Economic Operator may tender only for a certain part, or parts, of the contract, the amount of the government fee shall be derived from the product of the budgeted value of the part, or total value of the parts respectively, that concern the preliminary opposition (excluding VAT) multiplied by 0.5%. The preliminary opposition is examined by a Commission of the AEPO on a date which cannot be more than forty (40) days from the date of its filing (paragraph 4, article 365, Law 4412/2016). The decision on the preliminary opposition is adopted within a time limit of twenty (20) days from the day of its examination (paragraph 1, article 367, Law 4412/2016). The procedure from the filling of the preliminary opposition until the adoption of the decision has a maximum duration of sixty (60) days.
Example: The above-mentioned enterprise, considering that its exclusion from the next stage of the public competition was unlawful, assigned a lawyer to draw up and file a preliminary opposition to the Authority for the Examination of Preliminary Oppositions (AEPO) for the annulment of the relevant decision of the Contracting Authority. The preliminary opposition was examined by a Commission of the AEPO within 20 days of its filing, and 10 days later the decision was adopted, which accepted the opposition. The decision of the Contracting Authority was annulled by the AEPO and the Economic Operator was able to continue to the next phase of the public competition.
Judicial Protection of Economic Operators at the Pre-contractual Stage
In the event of the rejection of its preliminary opposition by the AEPO, the Economic Operator has the right to file a request for cancellation and an application for interim measures to the Administrative Courts.
In the example above, if the AEPO rejected the preliminary opposition, the Economic Operator would have the right to file an application for suspension to the Administrative Court of Appeal within 10 days from the adoption of the decision. If the Administrative Court of Appeal accepted the suspension request, the Economic Operator could then also file an application for the cancellation of the decision of the AEPO to the same court.
Legal Services and Judicial Protection to Foreign Enterprises in Greek Public Tenders
Our law firm, having more than 10 years of experience in public tendering, as well as in the newly set-up electronic system of NPPS (Greek: ΕΣΗΔΗΣ), provides legal assistance to natural or legal persons who reside, or have their registered office in a foreign country, at all stages of public procurement procedure and in particular:
- We undertake the procedure of obtaining a Greek VAT number.
- We check if your electronic signature meets the requirements set by the Hellenic (Greek) Public Administration Root Certification Authority (Greek supervisory body). If you do not possess the required qualified certificate for electronic signature, we assist you in getting it issued from a qualified trust service provider of your country according to Regulation (EU) No 910/2014 of the European Parliament and the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.
- We carefully study the contract notice and identify traps and ambiguities. If necessary, we ask the Contracting Authority for clarifications.
- We confirm your eligibility to participate in the competition.
- We guide you in collecting the necessary supporting documents from your country’s public authorities, draft the required affidavits and fill out the ESPD or the SSDF.
- We submit your financial offer by filling out online the prices you indicate.
- We place your digital signature on as many documents as necessary. The documents can be digitally marked by us remotely with special software (e.g. TeamViewer).
- We upload your supporting documents to Prometheus's digital folders, and we finalize your offer after we check it.
- After the electronic opening of the offers, we check the supporting documents of the competing Economic Operators for irregularities. We inform you if a tenderer has submitted an unlawful offer, and we calculate the cost of drafting and filing a preliminary opposition to the Authority for the Examination of Preliminary Oppositions (AEPO).
- If necessary, we file a preliminary opposition to the AEPO against the decision of the Contracting Authority which damaged you. In case the opposition is rejected, we file an application for suspension and an application for the cancellation of the decision of the AEPO to the competent Administrative Courts. If the decision of the AEPO is canceled by the Administrative Courts after the Contracting Authority has concluded the contract, we file an action for compensation against the Greek State.
- We provide legal advice and claim your demands in court even after the conclusion of the contract. Legal consultation is provided to foreign Economic Operators by email or other means (e.g. Skype, Viber, etc.).
Residing or having your legal seat in a foreign country is no longer a reason to decline tendering in Greek public tenders. Under our guidance, public tendering in Greece is safe, profitable and easy. If you were looking for a law firm for public procurement in Greece, you’ve found the right professionals.