New Rules at Bay: the New Public Procurement Contracts Law and Questions of Enforceability

/ / Legal x-rays

The new 4281/2014 law which was published on August 8th 2014, already discussed in some of our previous articles, has not yet been applied due to recent developments on EU legislation. In particular, its purpose has been to form a new harmonized legal context which will regulate the public procurement contract procedure, as well as implementing European directives 2004/17/EC and 2004/18/EC on tender procedures.

The adoption of law 4281/2014 aims to simplify and unify existing legislation regarding public procurement law and to further promote transparency in public tender contracts. Hence, the new law introduces provisions which make publishing to KIMDIS, an electronic file, all public procurement contracts obligatory, regardless of their estimated value. It also includes provisions which uniformly regulate all guarantee limits. Finally, the new law also foresees that petitions against contracts with estimated value over 60.000 euros are examined by the Independent Authority for Public Tenders which was formed with law 4013/2011.

Law 4281/2014 is expected to replace the existing at this date Presidential Decree no 118/2007, as well as law no 3886/2010 which regulates the judicial procedure for public procurement contracts, given that these fall within the scope of EU Directives no 2004/17/EC and 2004/18/EC.

Moreover, a new enforcement date has been set, February the 29nd, 2016. However, some concerns have surfaced regarding the law’s practical application, given that its enforcement has already been postponed several times. These are:

1) First, the new law implements EU Directives 2004/17/ΕC and 2004/18/EC which have been, however, repealed by new EU directives (2014/25/ΕU and 2014/24/ΕU). The latter must be implemented in national legislation by April 18th, 2016. The following question therefore emerges: is it practically possible to enforce a law which implements EU directive provisions that have been explicitly repealed by newer ones? The new EU Directives aim to further simplify and improve the public procurement contract procedure and to promote more transparency. They introduce novelties such as the enactment of the ‘‘most economically advantageous tender’’ as the sole awarding criterion, the enactment of a new awarding procedure for innovative projects, as well as the introduction of a European Single Procurement Document (ESPD) for public tenders.

2) The second emerging issue concerns the judicial protection regarding the new public tender procedure. As already explained, the Independent Authority for Public Tenders is competent to examine all petitions regarding public tender contracts with an estimated value at or over €60.000. Nevertheless, it remains unclear whether tender petitions with an estimated value below €60.000 would still be submitted, given that the standing Presidential Decree 118/2007 specifically foresees for such contracts the possibility to file a petition of disposition at all stages of a public tender procedure – from the announcement to the final awarding. This possibility is not, however, foreseen by the new law.

Our law firm’s comment: 

Although Law 4281/2014 attempts via its provisions to uniformly regulate the public tenders procedure, it also presents several legal challenges which hinder its enforcement and could create more legal problems that it tries to solve. As a result, we currently expect new developments as well as the enactment of new rules that will improve the existing public tender procedure model. Currently, the legal regime for public tenders is set by Presidential Decree 118/2007 and Law 3886/2010, as recently confirmed by calls recently announced by the Greek Committee of Health Supplies.