Procurement process

Relevant procedure

What procedures normally apply to a PPP procurement? What evaluation criteria are used to award a PPP transaction?

Articles 7 to 16 of Law No. 3389/2005 determine the general principles (ie, equal treatment, transparency, proportionality, mutual recognition, protection of the public interest, protection of the rights of private individuals, free competition, protection of the environment and sustainable development, etc), the criteria (criterion of the most beneficial profitable offer from a financial aspect or criterion of the lowest price) and the assignment procedure for the selection of the private entity that will undertake the project. Article 15, paragraph 3 of the PPP law provides that in addition to the assessments described in paragraphs 1 and 2, the contracting authority shall also assess the economic and financial adequacy and the technical and professional abilities of the candidates or tenderers.

The evaluation procedure begins with the submission of a Greek public entity’s project proposal to the SSPPP for evaluation and, in the case of approval, adding it to the list of proposed partnerships. The listed proposals are submitted for final approval to the IMPPP Committee. After committee approval, the SSPPP will tender the project determining the contract’s scope, nature of the assignment procedure (eg, open tender, restricted tender, competitive dialogue or negotiation), its terms, criteria and minimum qualifications required from a potential bidder, and coordinate the procurement procedure.

Consideration of deviating proposals

May the government consider proposals to deviate from the scope or technical characteristics of the work included in the procurement documentation during the procurement process, without altering such terms with respect to other proponents? How are such deviations assessed?

Regardless of the nature of the assignment procedure, the contracting authority shall evaluate the tenders only on the basis of the contract award criteria laid down in the invitation to tender (article 13, paragraph 9 of Law No. 3389/2005). Furthermore, the parties customarily incorporate general and specific terms and conditions in to the PPP agreement regarding the changes in factual and legal conditions of the partnership, including deviations from the scope or technical characteristics of the work. See also question 26.

Unsolicited proposals

May government parties consider unsolicited proposals for PPP transactions? How are these evaluated?

No. A third party may submit a proposal for a project either directly to the SSPPP or to public entities for evaluation; however, the proposals are evaluated under the provisions of articles 7 to 16 of Law No. 3389/2005.

Government stipend

Does the government party provide a stipend for unsuccessful short-listed proponents or otherwise bear a portion of their costs?

No. There is no such provision in Greek law.

Financing commitments

Does the government party require that proposals include financing commitments for the PPP transaction? If it does not, are there any mechanisms during the procurement process to ensure that the applicable PPP transaction, once awarded, is financeable?

Yes. The private entity must demonstrate to the public entity that the financing, in whole or in part, of the construction of the works or the provision of services, shall be accomplished with capital and resources secured by the private entities. The contracting authority shall proceed to verify the economic and financial standing of the candidates or tenderers and also verify details of their ability to secure credit (article 2, paragraph 1c; article 17, paragraph 2; and article 18, paragraph 1 of Law No. 3389/2005).

Legal opinion

May the government ask its counsel to provide a legal opinion on the enforceability of the PPP agreement? May it provide representations as to the enforceability of the PPP agreement?

The SSPPP may enter into contracts with independent legal experts for support (article 6 of the PPP law).

Restrictions on foreign entities

Are there restrictions on participation in PPP projects by foreign entities? May foreign entities exercise control over the project company?

The private entities shall conclude the PPP agreements by means of SPCs established solely and exclusively for the purposes of the partnership. They shall have their registered headquarters in Greece and shall operate in accordance with the provisions of the law on companies limited by shares (sociétés anonymes). No restrictions exist for foreign entities holding shares in an SPC - even the majority or the total of shares (article 1, paragraph 4 of Law No. 3389/2005).