LAW No 4013 - Article 2 - Scope/remit of the Authority

Article Index

Article 2 Scope/remit of the Authority

1. For the purposes of the present law, ‘public contracts’ mean contracts having as their object the execution of works, the supply of products and the provision of services, as these are defined in the existing public procurement legislation, as currently is stipulated in Law 4412/2016 (A’ 147) and Directives 2014/24EE and 2014/25EE, regardless of the estimated value of such contracts.

The present law shall also apply to framework agreements, dynamic purchasing systems, as well as work and services concession contracts, as these are defined in the existing legislation and in particular as currently defined in Law 4413/2016 and the Directive 2014/23/ΕΕ. The provisions of the present law shall not apply to contracts that fall within the scope of Law 3978/2011 (Government Gazette 137A), to contracts exempted from the present law pursuant to Articles 17 and 24 thereof or to contracts concluded pursuant to Article 346 of the Treaty on the Functioning of the European Union (TFEU).

2. The Authority shall have the following competences:

a) It shall supervise and coordinate the action of central government agencies in the field of public procurement and may take part in the collective central government bodies responsible for public procurement, which are established under Article 15 par. 2 (b) of Presidential Decree 63/2005 (Government Gazette 98’A). Furthermore, for the purposes of harmonization, consistent development and application of public procurement law, the Authority may convene coordination meetings between representatives of the central government agencies and adopt a decision setting up working groups in which all competent ministries are represented. The mandate, time-frame and method of operation of such working group shall be stipulated in said decision. The competent central government agencies and the local authorities shall plan their needs in terms of works, supplies and services for the following year and shall send a table of requirements to the Authority for its information.

b) It shall promote the national public procurement strategy and ensure that it complies with the rules and principles of European and national public procurement law. More importantly, it shall propose to the competent national bodies regulations for the proper harmonisation of national legislation with European law, the simplification, supplement, reform, codification and consolidation of the relevant national laws and regulations and the rationalization of administrative practices, in order to guarantee, in the public interest, their uniform and speedy application and the proper award and performance of public contracts.

c) It shall issue an opinion on any provisions of bills or draft regulations on public procurement and shall participate in the relevant legislating committees. The relevant bodies must take account of the Authority’s opinion. More importantly:

aa) the Authority shall issue its opinion on the provisions of bills relating to public contracts before they are tabled before Parliament. If the competent Minister disagrees with the Authority’s opinion, the Authority may convene a meeting at which all the competent Ministries are represented, in order to exchange and reconcile opinions. The Authority or any competent Minister may request the presence of independent third party public procurement specialists at the said meeting, which shall be held within ten (10) working days of receipt of the Authority’s invitation to attend by the delegates. If the said deadline expires to no effect, this shall not delay the procedure to pass the bill. If the disagreement between the competent Minister and the Authority is not resolved, a report by the Minister, specifically reasoning any derogation from the Authority’s opinion, shall be attached to it. These documents shall accompany the bill, when it is tabled before Parliament and shall be posted by the Authority on its website. If the bill derogates from the Authority’s opinion, the competent parliamentary committee may summon the President of the Authority to a hearing in accordance with Parliament’s Rules of Procedure;

bb) presidential decrees regulating public contracts shall be issued following an opinion by the Authority. This opinion shall accompany the draft presidential decrees when they are tabled before the Council of the State for processing and shall be posted by the Authority on its website.

cc) other regulatory acts issued by delegated acts, with the exception of invitations to tender, and the regulations of other government bodies and contracting authorities, especially regulations issued pursuant to Article 5 par. 3 of Law 2286/1995, including the rules of procedure of public procurement inspection agencies, shall be issued subject to the Authority’s consent.

The Authority’s competence to issue the above opinions shall be exercised within thirty (30) days of receipt of the above draft provisions from the competent body. If said deadline expires to no effect, the relative regulatory acts may be issued even without the Authority’s consent.

dd) Decisions by contracting authorities pertaining to have recourse to the negotiated procedure for the award of public contracts in accordance with Articles 26 par. 2 (b), 32 and 269 of Law 4412/2016 (Α’ 147), save in cases of force majeure, shall be issued with the Authority’s consent, provided that these contracts, as per their estimated value, fall within the scope of Directives 2014/24/ΕΚ and 2014/25/ΕΚ, which are transferred in the Greek legal order by Law 4412/2016. When exercising this competence, the Authority takes into account the general principles of national and European Law. This competence shall be exercised within twenty (20) working days following the date the Authority receives the draft decision, accompanied by all information that justifies recourse to the negotiated procedure in each individual case, from the contracting authority. If said deadline expires to no effect, the Authority shall be presumed to have given its consent. In exceptional cases, especially due to the complexity of contract to be awarded, the Authority may issue a decision, which is notified to contracting authority, extending once the above deadline by fifteen (15) more working days. Decisions of the contracting Authorities to have recourse to the negotiation procedure for the award of public contracts, pursuant to the provisions of Article 25 par. 3 of Presidential Decree 59/2007 (Α’ 63) and the Articles 24 και 25 of Presidential Decree 60/2007 (Α’ 64), issued, from the entry into force of Law 4013/2011 until the 31st.12.2012, without or before having been submitted to Single Public Procurement Authority for its consent, according to Article 2 par. 2c) (dd) of Law 4013/2011 shall not be invalid for that reason and produce all their legal effects.

d) The Authority shall issue and publish on its website regulations on specific technical or detailed issues on public procurement, pertaining in particular to the interpretation of the relevant national and EU legislation, taking into account the national and EU case-law, provide guidelines on the context of the above to the competent public bodies and contracting authorities and propose to the competent Ministers the issue of relevant circulars.
Said guidelines pertain in particular to the unification of control procedures preceding the award of public contracts. The competent public bodies must consult the Authority verbally or in writing before issuing any circular or guidelines. In the event of disagreement, said bodies must take into consideration the Authority’s opinion and justify their positions in writing.

e) The Authority shall issue standard tender documents and draft contracts, following consultation with the competent public bodies in each case. Any provisions of law authorising other bodies to issue standard tender documents, as in particular the provisions of Article 15 par. 2 of Law 3669/2008 (Government Gazette 116A) and Article 11 par. 4 of Law 3316/2005 (Government Gazette 42A), cease to be in force from the date set in the rules of procedure referred to in Article 7. Any binding standard tender documents that may have been issued pursuant to the above provisions shall continue to be in force until the time new standards be issued by the Authority. The Authority shall also formulate rules on the standardisation of technical specifications, in collaboration with the competent bodies, and shall verify their compliance with the general principles of national and EU law.

f) The Authority shall monitor and evaluate the efficacy and efficiency of actions by government public procurement agencies, including the competent Ministries, the competent inspection and supervision administrative bodies and the contracting authorities, in the context of the current national and European public procurement laws and regulations. The bodies and procedure for monitoring and evaluation of the above actions may be defined by presidential decree, issued following proposal of the Minister for Development, Competitiveness and Shipping, opinion by the Authority.

g) It shall carry out spot checks, by requesting ex officio from the contracting authorities and the public and private bodies involved information and data relating to procedures under way for the tender, award and performance of public contracts and shall summon their representatives to a hearing so that such information and data can be provided. Within this remit, the Authority may order the competent audit bodies to collect data and submit findings in the field of public contracts.

The relevant government bodies and contracting authorities must cooperate with the Authority, provide it with any necessary information and comply with its recommendations. The Authority shall use risk assessment methods to examine in particular the procedures to tender, award and perform public contracts that fall within the scope of EU law or are co-financed by EU programs. It shall also examine all procedures to tender, award and perform public contracts being under investigation by the EU for alleged infringement of European law. The findings of the Authority’s investigation into the above procedures to tender, award and perform public contracts shall be notified to the relevant contracting authority.

In case the Authority identifies any infringement of national or EU public procurement law, by its relevant decision, which is taken estimating the seriousness of identified infringement, the Authority shall address the appropriate simple and obligatory recommendations or suspend the progress of the procedure for tender, award and perform the public contract under investigation by the Authority. In case of suspension, the procedures shall not continue without decision of the Authority granting its written consent. Said findings may also be transmitted to the competent courts, on their request, and may be given by the contracting authority to any interested party that can prove a legitimate interest, so that they can exercise their legal rights. The Authority shall, likewise, immediately advise the competent supervisory and inspection bodies, so that they can exercise the powers vested in them by law and, if there has been any infringement of national or European law, it shall draft and post on its website a special report, which is forwarded to the President of the Hellenic Parliament and notified to the above competent bodies.

h) It shall supervise and evaluate the relevant public procurement inspection bodies in respect of the exercise of their duties in accordance with national and EU laws and regulations and the guidelines issued by the Authority. Said bodies must comply with the Authority’s guidelines. The bodies and the procedure of supervising and evaluating the above inspection bodies may be defined by presidential decree, issued following the proposal of the Minister for Development, Competitiveness and Shipping and the opinion of the he Authority.

i) The Authority may submit comments on public procurement issues, especially with regard to the interpretation of public procurement law, either verbally or in writing, on its own initiative or at the request of the competent courts in legal proceedings before them. If the Authority formulates a verbal opinion, it shall be represented by its President or Vice-President or a member authorised by the President. The Authority may ask the competent court for any document it deems necessary in order to formulate the above opinion.

j) It shall keep a National Public Procurement Database in accordance with the specific provisions of its Rules of Procedure. In particular:

aa) it shall collect and publish information on public procurement laws and regulations and related European and national case-law;

bb) it shall monitor and evaluate the collection, processing and publishing in the Central Public Procurement Database of information from the contracting authorities and competent public bodies in accordance with the provisions of Article 11. Further, it shall be responsible for updating the National Public Procurement Database with any other specific information provided for under the rules of procedure referred to in Article 7 and the provisions of the present law.

k) It shall provide advice to the contracting authorities on its own initiative or on their request, especially during legal or preliminary proceedings relating to the proper conduct of award procedures and public contracts perform and the uniform application of national and EU public procurement law.

l) It shall participate in the relevant EU institutions as the single national contact point for exchanging opinions, information and data on the national public procurement strategy, legal framework and procedures for tendering, awarding and performing public contracts. It shall also take part in Greece’s delegation to international public procurement organisations and conferences. Within the above remit, it shall serve as the central contact and coordination point of the Greek authorities with the EU institutions in connection with alleged infringements of EU public procurement law, without prejudice to the powers of the Legal Department of the Ministry of Foreign Affairs to handle infringements of EU law and to represent the Hellenic Republic before the EU courts. The findings from the Authority’s investigation of the proper interpretation of, compliance with and application of the said rules carried out pursuant to subparagraph (g) above must be attached to the reply by the Greek authorities to the European Commission on alleged infringements of EU public procurement law.

m) It shall draft and submit to the President of the Hellenic Parliament, by the end of the first quarter of every calendar year, an annual report, which shall be posted on the Internet and which shall contain an assessment of the Authority’s activities in accordance with its object and remit, proposals submitted to the competent authorities and bodies for the improvement of the legislative and regulatory framework and the procedures for tendering, awarding and performing public contracts and the progress made by the said competent authorities and bodies in complying with the said proposals.

3. By presidential decree issued at the proposal of the Minister for Finance and Development, the Minister for Infrastructures and Transport and any other competent Minister, additional powers may be granted to the Authority in order to fulfil its object. In order to scientifically support its competences and facilitate their exercise, the Authority shall have access to Administrative Justice and Court of Auditors integrated IT system, according to the terms set by the Personal Data Protection Authority, following relevant request by Single Public Procurement Authority, submitted prior to the relevant request to the Supreme Administrative Courts.