The legal support of our lawyers in public procurement matters is a large chapter of our legal practice. We represent large and small companies in matters arising from their participation in public tenders.
Our legal support includes the study and interpretation of the tender notice and clarification of its terms, the submission of questions to the contracting authority, the collection and verification of the supporting documents for participation, the submission of objections and appeals both before the authorities and the Pre-Trial Appeal Authority and before the courts.
Our lawyers have experience in tenders conducted under Law 4412/2016 for the procurement of goods such as medical equipment, medical devices, hospital supplies, medical devices or services, etc.
Also our lawyers have experience in tenders for the lease of municipal properties under the Law 270/1981 for various uses (outdoor advertising etc.) as well as for the lease of properties of Legal Entities under Public Law such as Ministries, Hospitals, Hospitals, recreational facilities, archaeological sites by the State Property Fund according to the Law 715/1989 or properties of private individuals who want to lease public services.
The laws on public tenders and public procurement in general are complex and complicated and different legal regimes and deadlines apply. Even the issue of the jurisdiction of the courts in each tender is sometimes complicated, since in some cases an appeal is required and in others it is not, sometimes the administrative courts are competent and sometimes the civil courts.
It is therefore necessary for a lawyer who deals with public tenders to have general experience with public procurement but also to have contact with each sector specifically because of the particularities of each case.
Our support in each tender starts with the control and interpretation of the tender notice.
In a second stage, we issue or check the documents required to participate in the tender, we draw up or check the necessary applications and declarations and we advise and check the whole creation of the participation file.
Then our lawyers, if requested, attend the opening of the tenders and submit objections, defending our clients.
When the minutes of the suitability or award of the tender are published, our lawyers, if required, proceed with an appeal as well as an appeal to the competent courts.
The vast majority of public tenders are now governed by Law 4412/2016 on Public Contracts for Works, Supplies and Services. This law provides for the conditions for conducting a public tender or directly awarding a contract, the public tender procedure, the electronic tender procedure, the necessary supporting documents and, in general, the preparation of the public contract.
Often the result at some stage of the public tender may not be satisfactory. A participant may be excluded during the examination of the supporting documents or because it does not meet the technical specifications required by the contract notice. In many cases, the contract notice itself may contain unlawful terms, for example, photographic provisions, which may exclude an interested party from participation in the public tender without a legitimate reason. Or the tender may be awarded to a competitor when his bid was not legal or was inferior to ours.
PRE-LITIGATION APPEALS AND OBJECTIONS
The most common case of pre-litigation appeals that we encounter as public procurement lawyers is the appeal to the Pre-Trial Proceedings Authority provided for in Law 4412/2016, which has already been renamed the Single Public Procurement Authority.
Our public tender lawyers can undertake the exercise of the preliminary appeal, which, if governed by Law 4412/2016, is filed electronically on the tender website. In case the tender procedure is not conducted through the ESIDES, the pre-trial appeal is filed with AEPP. The preliminary appeal contains the legal and factual grounds for the request.
The same document may also include a request for the suspension of the public tender procedure until the decision on the preliminary appeal is issued.
Any interested party, whose interests are affected, is entitled to bring an intervention before the AEPP within an exclusive period of ten (10) days from the notification of the appeal.
The time limit for lodging a preliminary appeal and the lodging of such an appeal shall prevent the award of the contract on penalty of nullity, which shall be established by decision of the AEPP following the lodging of an appeal.
In all other respects, the lodging of a preliminary appeal does not impede the progress of the tender procedure, but our lawyers may also file a request for the suspension of the public tender procedure until a decision on the preliminary appeal has been issued.
In all cases, interim judicial protection is also provided, i.e. the possibility of applying for interim measures in urgent cases.
Both Greek and European law prohibit the abuse of dominant position. Specifically, as accepted by the courts’ decisions (167/2022 BPP PATR), Article 18a para. 1 of Law 146/1914 added by Art. 22 par. 1 of Law 3784/2009, the following are stipulated:
It is prohibited for one or more undertakings to abuse the relationship of economic dependence of one or more undertakings on it or them, which is a customer or supplier, even for a certain type of goods or services, and which has no equivalent alternative.
Such abusive exploitation of economic dependence may consist in particular in the imposition of arbitrary transaction conditions, the application of discriminatory treatment or the sudden and unjustified termination of long-standing commercial relations.
The breach of the above articles constitutes unlawful conduct within the meaning of the provision of Article 914 CC in such a way that, provided that the other conditions of this provision are met, the third party who has been harmed has a claim for compensation (AP 403/2016, AP 1522/2013, AP 1664/2014, EfPir 368/2016, EfAθ 288/2015, EfAθ 6197/2011).
Furthermore, discriminatory treatment, in addition to the form of refusal of sales, purchases or other transactions, mentioned indicatively in the above articles, may also relate to the quantities of products delivered and generally the other conditions of transactions, which affect the competitive ability of enterprises (Efath 1572 / 2006).
