The prolonged economic, political and social instability, which came as a result of the 2020’s pandemic and the economic recession, has made it clear that the states across the world, must improve the existing framework and invest in the creation of new tools and skills for awarding and executing a public contract.
The significance of the state as a factor in securing the fundamental needs of citizens, as well as a guarantor of major developments, particularly in construction and reconstruction projects, has undoubtedly increased. Besides, it is important to recognize that even today, a significant portion of the market, especially in Greece, continues to be supported by contracts awarded through public procurement processes.
In this context the need for a cohesive, functional and, at the same time, flexible fiscal framework has brought at the forefront the need for continuous and numerous updates, adjustments and interpretations of Law 4412/2016, which is the main piece of legislation for awarding and executing public contracts for supplies, services and goods in Greece.
Law 4412/2016, which, by adopting the E.U. trend in the field of public procurement, codified and replaced, for the most part, the previous scattered legislation (e.g. Law 3669/2008 on public work construction etc., Law 3886/2010 and Law 4281/2014 on judicial protection in awarding contracts through public procurement etc.), since its enactment, it has introduced, in the Greek legal system, numerous innovations and awarding tools and established related obligations for both the contracting authorities and the economic operators.
Challenges & drawbacks
Despite its noble intentions and its long-standing practical application, Law 4412/2016 problems and drawbacks in awarding and executing public procurement contracts still exist and continue to surface.
Initially, the formalism, the complex structure, the lack of interpretive flexibility of the existing legislative framework, as well as the constantly changing case law continue to be amongst some of the major “issues” faced by those engaging in public procurement contracts. Furthermore, the indistinct nature of judicial review, combined with the tendency of contracting authorities to complicate rather than simplify issues, often lead to the formation of contradicting decisions – resulting in undesirable and costly outcomes for economic operators. In two different cases involving the same economic operator, both of which our law firm has handled, the relevant legal issue was identical. Specifically, in the first case, the Hellenic Single Public Procurement Authority (HSPPA/EADISI) issued a decision on what was previously considered as unchecked technical judgement from the contracting authority regarding the evaluation of a specific element of a technical offer (HSPPA/EADISI Decision no. 486/2023, 4th Unit). Yet, in the second case, it correctly -according to the author’s opinion- did not make any technical judgment (HPPSA/EADISI Decision no. 1797/2023, 4th Unit). The issue was ultimately resolved by the courts (with the Decision no. 148/2024 issued by the Thessaloniki Administrative Court of Appeal), but, by then, significant time and resources were lost, both for the private party and the public sector.
Although problematic and in many cases, remarkably detrimental is also the operation of the National Electronic Public Procurement System (NEPPS/ESIDIS). On a case that our law firm has handled, our client (the economic operator) was not timely informed for the contracting authority’s decision, resulting in the loss of the ten-day deadline to file a petition against it. This occurred because NEPPS/ESIDIS notification system failed to send an email alert notifying the economic operator on the issuing of the decision. This is something which we daily observe happening to many users of the NEPPS/ESIDIS system. And since in the past, HSPPA/EADISI decisions were shielded behind the letter of the law to avoid examining their substance, our law firm’s assistance and specific legal maneuvers were required to overcome the admissibility issue and rectify a clear “injustice” created by the failure of the notification system (HSPPA/EADISI Decision no. 783/2024, 5th Unit).
Moreover, the handling of the process of awarding and executing a public procurement contract by the contracting authorities is often problematic. The procurement documents are forms that due to their, erga omnes, regulatory status, require special attention in drafting them and they are often published containing vague, unclear and contradictory terms. Furthermore, during the evaluation of participation or/and award documents, even at the stage of signing the award contract, sloppiness and formalism is often the case. In a tender in which one of our clients participated, it has been proved that the contracting authority provided examples of required documentation proving the possession of a technical system, by ending the relevant term with the word “etc.”. At the assignment stage, however, the contracting authority accepted proof of possession via a sworn statement! The issue was resolved by a decision from the HSPPA/EADISI which rejected the admissibility of the sworn statement as an appropriate supporting document (HSPPA/EADISI Decision no. 783/2024, 5th Unit).
As it is clear, cases like the ones mentioned above, create insecurity for the average economic operator and discourage the free market from accessing public contracts. At the same time, the work of contracting authorities is also hindered, as they lose valuable time drafting opinions in the context of disputes, while they are often forced to repeat competitive stages and procedures.
Eyeing the future
In every case, the times require the utilization of every available technological tool to streamline and normalize the processes of awarding and executing contracts through public procurement. To this end, already in Europe, as well as internationally, the states are in the process of developing technologies such as artificial intelligence (AI) and big data/data analytics. A notable example is Sweden, which aims to use AI (Kommers – AND – semantics check tool) to adapt tender documents in order to eliminate any room for misinterpretation by the participating economic operators. Respectively, Italy is developing a machine learning tool (ANAC) that, through published data, can identify hidden relationships between public entities and companies with the ultimate goal of combating corruption. Lastly, USA in collaboration with the technological giant, IBM, are designing an AI tool, that will be used by economic operators to facilitate their participation in complex procurement processes in the defense sector.
The new era of public procurement is ahead of us and the aforementioned initiatives should serve as guide, target and motive for the Hellenic state for the years to come. Respectively, the private initiative, which always leads the way, can make use of new technologies and develop tools that give competitive advantage for participating in public tenders in the most efficient way possible (e.g. by creating search and filtering tools for invitations to tender).
This article has been published on «The Lawyer Magazine» operated by Boussias publishing at issue no. 34 dated September – October 2024.
