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On March 2021 Law 4782/2021 (the “Law”) has passed,
introducing a plethora of critical amendments to a wide range of
the existing rules of the public procurement framework.
One of the most important amendments introduced by the Law is
that the economic operators are permitted not only to clarify and
supplement information and documentation already submitted in a
tender but also to submit anew documents at a later stage, provided
that the general principles of equal treatment and transparency are
observed.
The above provisions apply to the procurement of (i) public
works, supplies, and services contracts of all subject types
entered into by public entities or private entities governed by
public law, governed by Law 4412/2016, and (ii) PPP
(Public-Private Partnership) Contracts usually applied by
a decision of an Inter-Ministerial Committee in large scale
projects, in which private entities assume the risk of
construction, financing and operation of infrastructure and/or
provision of public services against payment of availability
payments by the State or a consideration paid by the end-users,
governed by Law 3389/2005. Surprisingly enough, the amendments
introduced by the Law did not capture the respective provisions of
the law on the procurement of public works and services concession
agreements (Law 4413/2016). However, given that the law on
concession constitutes a basic pillar of public procurement, we
would expect that the new rules will soon be expanded to the
procurement of concession agreements as well.
To illustrate the radical changes introduced to the
“clarification – supplement of bids” rules, a short
overview of the previous framework would be useful. In accordance
with such rules, during the evaluation stage, the contracting
authorities could, at their discretion, request the economic
operators to clarify or supplement the submitted documentation.
Such clarification/supplement could only refer to ambiguities,
non-material deficiencies, and obvious standard errors
(indicatively described in the law), however, it could not result
in the submission for the first time of new documents or the
replacement of already submitted ones. Any resubmission could only
encompass clarification and supplement (even with new documents) of
already submitted documents. As a consequence of the above rules in
conjunction with the general principle of the formality of the
tender procedures, many economic operators were disqualified from a
tender for non-material formalistic deficiencies, while in fact
they fulfilled the selection criteria.
In accordance with the new provisions (which actually transpose
the provisions of the 2014 Public Contracts Directive), where
information or documentation submitted by economic operators is or
appears to be incomplete or erroneous or where specific documents
are missing, the contracting authorities request the economic
operators concerned to submit, supplement, clarify or complete the
relevant information or documentation within an appropriate time
limit (10 to 20 days from such request), provided that such
requests are made in full compliance with the principles of equal
treatment and transparency. In accordance with the justification
report of the Law, the new provisions aim to prevent the
disqualification of bids for strictly formalistic reasons in cases
where the participation and qualification criteria are met by the
economic operator, thus ensuring the widest possible fair
competition, preventing formalism and facilitating the access of
small and medium-sized businesses to public contracts (in the sense
that such businesses usually do not engage legal or other advisors
to assist them with the preparation of their bids and there is a
higher risk their bids being incomplete or erroneous).
However, the right and obligation of the contracting authorities
to request from the economic operators to clarify/supplement their
bids and/or submit new documents for the first time is not
unlimited.
The language of Law 4782/2021 and its justification report set
the basic boundaries to the exercise of the above right of the
contracting authorities.
First, such right should be exercised in compliance with the
general principles of equal treatment and transparency.
Practically, this means that the contracting authorities should
treat all economic operators in an equal manner and shall ensure
that at all times the exercise of the right to request
clarification does not result in the modification of the bid in
such a manner so as a specific economic operator gains
unjustifiable advantage against the others.
Furthermore, the request of the contracting authorities should
refer to documentation that was available prior to the expiry of
the deadline set for the submission of bids and such availability
can be proven on the basis of objective criteria. By way of
example, if an economic operator has not submitted a document, but
reference to such document or its content is being made in other
parts of the bid it would be unfair for the economic operator to be
disqualified only for the absence of such document from its
original submission.
In any case, it should be mentioned that the new provisions
cannot result in material amendment of the bid or submission of a
new bid and cannot allow non-diligent economic operators to remedy
the numerous deficiencies of a submitted bid.
The new provisions may lead to disputes between the economic
operators and the contracting authorities with respect to the
exercise or not (and the extent of such exercise) by the latter of
their right (and obligation) to request clarification/supplement of
the bids. Such provisions will eventually be interpreted by the
administrative courts, which will determine the context in which
the right of the contracting authorities will be exercised.
In general, the new provisions constitute a positive step
towards the modernization of the public procurement framework,
aiming to put a halt to the unjustified disqualification of
economic operators who fulfill the participation and qualification
criteria and are disqualified due to deficiencies and ambiguities
of their bids that are capable of being remedied or clarified. The
new provisions supported also by other efforts of modernization of
public procurement framework (such as the new provision introduced
by the Law that in cases of tenders conducted under the criterion
of the most economically advantageous offer, the contracting
authorities are entitled to issue a single decision – instead
of three under the previous regime – for their evaluation
validating the results of all stages of the procedure, i.e.
participation documents, technical offer, financial offer and award
documents) target the enhancement of fair competition and the best
serving of public interest.
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
