REPORTS
Exceptional public procurement procedure for contracts for flood protection studies and works to fire-affected regions
Amendment 1070/169/20-9-2021 was tabled at 21:05 on 20 September 2021. Despite the fact that it was both overdue and irrelevant to the main issue of the bill in which it was submitted, it was finally voted in as Article 136 of Law 4831/2021 “Organization of the Legal Council of the State and the status of its employees and other provisions,” and was included in part five of the law, “other provisions within the competence of the Ministry of Finance.” The above provision was voted for exclusively by MPs of the government, with the other parties voting against it (see page 78 of the minutes of the Parliament).
Apart from the fact that in this case the rules of good legislation provided by the Constitution, Articles 87, 88 and 101 of the Rules of Procedure of the Parliament and the Manual of the Legislative Drafting Methodology for amendments were not observed, its substantive content also raises concerns.
Starting with the title of the amendment (“Measures to accelerate projects and studies to control and regulate flood flows”) and moving on to its content, there is already some discrepancy. This is because the main issue of the amendment is the introduction of a derogated public procurement procedure, with the acceleration of the procedure being merely a secondary issue.
This amendment, therefore, makes the following arrangements for projects undertaken by the regions of Attica, Peloponnese, Western Greece and Central Greece with a contract through the Ministry of Environment and Energy: “if the estimated value of the contract is higher than the limits of Article 5 of law 4412/2016 they are to be entrusted with recourse to a procedure negotiated without prior publication, in accordance with circumstance c) in para 2 of Article 32 of law 4412/2016 (A’147) and in all other cases by recourse to the direct award procedure of Article 118 of the same law. ”
Article 5 of law 4412/2016 as referred to above, provides that if the estimated value of the project exceeds 5 million euros without VAT, then the contract can be awarded through a process of negotiation without prior publication, while in any other case (i.e. where the value of the contract does not exceed 5 million euros), it can be assigned directly.
In addition, all the acts of the procurement process will be done by the regional governor without taking into account the opinion or suggestion of any other body. The process will be completed in a specific way and a specific time frame (20 days), for the pre-contractual audit by the Court of Auditors without the prior approval of the HSPPA, (Hellenic Single Public Procurement Authority) for the process of negotiations. All the above exceptional arrangements apply to public procurement procedures that will start before 30.11.2021.
According to the summary explanatory memorandum of the amendment, (see p4) this provision is deemed necessary to immediately complete flood protection works in the areas affected by the fires of the summer of 2021, “before the occurrence of severe weather phenomena during the winter months of this year.” Presenting the amendment in Parliament, the Deputy Minister of the Interior (see page 13 of the Parliamentary minutes) stated that, “the amendment utilizes the exceptional provisions of law 4412/2016 and shortens the procedural deadlines, in order to facilitate the contracting authorities to act immediately and effectively.” Noteworthy, however, is the fact that the financial limit for direct assignments is not explicitly mentioned numerically either in the amendment or when it is presented to Parliament. The fact that the limit amounts to about 5 million euros instead of the simple reference “the limits of the law” was referred to for the first time in a relevant question/confirmation by a KINAL MP (see page 13 of the minutes).
Despite the self-evident necessity of constructing flood protection works in the fire-affected areas, the content of this amendment provoked a number of reactions (see pp. 13-14, 59-60 of the Parliamentary minutes, the concerns raised by the opposition, the tweet from the Parliamentary Representative of KINAL (Movement for Change Party) and the view of MeRA25 as well as articles in tvxs, Avgi and the Efimerida ton Syntakton). The sloppiness of the legislation; the high financial limits set for the direct assignment of projects; the fact that the whole process will be conducted by one person alone; the non-existence of a control body, the Government’s only apparent intention to carry out flood protection works, as well as the fact that directly assigning public contracts does not seem to be a practice isolated to managing the consequences of the fires, provided the main bases of criticism.
In general, minimizing guarantees of transparency and integrity, especially in an area deemed prone to corruption, such as public procurement, can only raise concerns. It is also worth noting that the President of the Technical Chamber of Greece, referring to the flood control works in the fire-affected areas, emphasizes that “it is impossible, even if studies and projects are directly assigned, for these to be implemented in less than 1 year.” This view, that is to say that even if exceptional procedures are followed and the relevant guarantees of transparency are bypassed, the result will not be the immediate completion of works as declared, can only multiply the concerns that arise regarding the expediency and effectiveness of this provision.
Public procurement contracts should be awarded as the result of a process that is public and transparent, and conducted with integrity, in order to avoid corruption and the distortion of competition.
The more these guarantees are shrunk in the procurement process, the greater the risk of corruption occurring. In this case, an exceptional public procurement procedure is brought to a parliamentary vote by way of a last minute and irrelevant amendment.
At a formal level, then, the passage of such a provision violates the rules of good legislation, the Constitution, and the Rules of Procedure of the Parliament. In addition, the substantive content of the provision raises concerns. The introduction of exceptional procedures; the high monetary thresholds; the entrustment of all relevant decisions to a single person; the lack of adequate scrutiny and, in general, the minimization of guarantees of transparency, are issues that cannot be overcome by the mere fact of the urgent need for flood protection works. In addition, the fact that there are indications that even the use of exceptional procedures will not lead to the declared purpose of accelerating the works, raises further concerns.
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