In his recent article for Sinigoros Magazine by Nomiki Bibliothiki titled “Recovery and Resilience Facility – Signaling New Developments in Public Procurement,” Anastasios Virvilios, Partner and Head of the Administrative Law, Public Procurement & PPP team at Machas & Partners but also Board of Directors Member of the Hellenic Capital Market Commission, provides a comprehensive overview of the Recovery and Resilience Facility. This European initiative, launched in February, seeks to bolster recovery and investment efforts in member states from the beginning of the pandemic in February 2020 until December 2026.
-> Anastasios’ full article follows.
Recovery and Resilience Facility – Signaling New Developments in Public Procurement
The predefined timeframes and quantitative milestones, as well as the specific requirements of the Recovery and Resilience Facility, are bringing in new dynamics to the way Public Procurement is carried out.
I. The Recovery and Resilience Facility
The Recovery and Resilience Facility was launched on 19 February (Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility), stipulating that each Member State will present a national Recovery and Resilience Plan (NRRP) containing the reforms and investments it undertakes. The RRF finances reforms and investments across all Member States from the start of the pandemic in February 2020 until 31 December 2026.
The National Recovery and Resilience Plan ‘Greece 2.0′ was approved on 13 July 2021 by the Economic and Financial Affairs Council of the European Union (Ecofin). It covers 106 investments and 68 reforms, organized in 4 main pillars: Green Transition, Digital Transformation, Employment, Skills & Social Cohesion and Private Investments and Transformation of the Economy.
In anticipation of the country’s absorption of the funds from the Recovery and Resilience Facility, the Hellenic Republic Asset Development Fund (HRADF) created a Project Preparation Facility (PPF) as a separate operational unit pursuant to Law 3986/2011. In addition, according to article 130 of Law 4799/2021 (“Incorporating Directive (EU) 2019/878 & 2019/879 of the European Parliament and of the Council […] as regards exempted entities, financial holding companies, […] the recapitalisation capacity of credit institutions etc.” / GG’ A’ 78), the HRADF has expanded its scope to include the implementation of investment projects of strategic importance which are classified as part of the Strategic Projects Pipeline (SPP). This enhanced support and delivery mechanism was established as an independent operational unit of the HRADF, as per Article 104 of Law 4804/2021.
The PPF aims to ensure the efficiency and quality of both public and PPP infrastructure projects. The PPF is placed to mature and carry out the tender process and supervise the implementation stage for projects of Strategic Importance that are part of the SPP according to Law 4799/2021.
The HRADF acts at the request of and on behalf of the Project Beneficiary, to accelerate the completion of the project and reduce the Beneficiary’s workload. This is done by supporting the Beneficiary’s administrative structure, as well as through the management and coordination of the project consultants to ensure the quality and efficiency in their delivery. To qualify projects/reforms for inclusion in the SPP, the implementing agency/competent ministry must first submit a request to the Strategic Project Committee for approval.
II. INCLUSION OF PROJECTS IN THE RRF
Pursuant to Council Act No. 16/31-5-2021 (GG A’ 91/5-6-2021) concerning the ‘Establishment and operation of the Strategic Projects Governmental Committee’, a Committee was created for Projects of Strategic Importance including the terms for its operation.
The Strategic Projects Governmental Committee (in accordance with the provisions of articles 125-130 of Law 4799/2021) issues a decision under which: (1) a project or reform may be included in the SPP under Law 4799/2021, and (2) the HRADF assumes the powers provided for in Articles 130 of Law 4799/2021 and 5B(1b) of Law 3986/2011, namely carrying out the maturity, the tender process (and any award procedure) and the supervision of the execution of the contracts in relation to the respective project. For any project to be eligible for inclusion in the RRF, a decision must be issued by the Minister of Finance (referred to as an “inclusion decision”) so that the project can be financed by the RRF.
In order for the HRADF to assume the aforementioned responsibilities, a contract must be signed between the HRADF and the Project Beneficiary as defined in article 5B(3a) of Law 3986/2011.
Considering that, as said above, RRF funding runs until 2026, all tenders concerning projects/reforms financed by the RRF must be carried out with particular emphasis on promptness. Therefore, the tender processes for the project completion must also be concluded within the timeframe set by the RRF, in compliance with the predetermined timeframes and quantified milestones.
B. SPECIAL REQUIREMENTS FOR INVITATIONS TO TENDER ISSUED BY THE RRF
Tenders financed by the Recovery and Resilience Facility are subject to special requirements that must also be detailed in the invitations to tender.
1. APPROVAL OF THE INVITATION TO TENDER BY THE CONTRACTING AUTHORITY
Initially, in cases where the HRADF is the conducting authority, the Project Beneficiary and the Contracting Authority must either approve the Invitation within one (1) month of receiving the Funds’ comprehensive and detailed proposal, or reject it giving explicit and sound reasons for such rejection within the same timeframe, on the basis of the provisions of Article 5B, para. 4(a)m sub-para. ab(iii) of Law 3986/2011.
Essentially, the HRADF is not the issuer of the invitation to tender, since it is only a proposal made by the HRADF and is subject to the approval of the decision-making body designated by the Project Beneficiary/Contracting Authority. Therefore, this approval (which may be in the form of a ministerial decision) must be given prior to the issuance of the tender invitation and it must be mentioned in the invitation to tender (for instance, it could be mentioned under the legal framework of the tender).
2. APPROVAL FROM THE RRFA AND FILLING OUT SPECIAL FORMS
The Recovery and Resilience Facility Agency (RRFA) was established by the Ministry of Finance, under Article 271 of Law 4738/2020 (GG A’ 207) and is responsible for monitoring and coordinating the implementation of all Actions and Projects funded by the RFF, serving as the exclusive national point of contact with the European Commission in relation to the scope of the RFF.
According to the decision issued by the Deputy Minister of Finance No. 119126 ΕΞ 2021 (GG B’ 4498/29-9-2021) on the “Management and Control System for Actions and Projects of the Recovery and Resilience Facility,” and specifically the provisions of paragraph 2 of Article 5 thereof, it is provided that the implementing agency shall submit to the RRFA the draft invitation to tender and the tender documents in general, for public procurement, as per Law 4412/2016 (GG A’ 147) which have an estimated value exceeding the limits of Articles 5 and 235 of the same law, or through concession contracts, as defined in Law 4413/2016 (GG A’ 148), which have an estimated value exceeding the limits of Article 1 of the same law, or through partnership agreements, as defined in Law 3389/2005 (GG A’ 232). The draft notice concerning grant schemes, or the draft individual state aid agreement should also be submitted.
The RRFA reviews the above documents following the detailed procedures outlined in the Procedure Manual, especially with regard to the compatibility of the material and financial aspects, the schedule, and the Milestones and Objectives of the Action or Project in question with the National Recovery and Resilience Plan (NRRP) and the Inclusion Decision, and to the compliance of the plans with the applicable national and EU law, and it presents its approval for the issuance of the relevant acts.
In addition, the implementing authority submits to the RFFA filled-out standard forms1, such as a tender notice checklist, containing the details of the tender notice or the relevant report for the achievement of the set project Milestones and Objectives.
3. SUBMISSION OF INFORMATION ABOUT THE BENEFICIAL OWNERS
For tenders funded by the Recovery and Resilience Facility, economic operators must submit, in accordance with the provisions of Article 22(2)(d) of Regulation (EU) 241/2021, the name (or names), surname (or surnames), and date of birth of the beneficial owners (or owners), the contractor and subcontractor, as stipulated in Article 3(6) of Directive (EU) 2015/849 of the European Parliament and of the Council. Specifically, in the case of unlisted companies, it is required to submit evidence and the content of registration with the Central Register of Beneficial Owners under Article 20 of Law 4557/2018 and a solemn declaration of the economic operator and subcontractor verifying the details of their beneficial owners. In the case of listed companies, it is required to submit a disclosure record pursuant to Law 3556/2007 or, in case there is no such record (for economic operators established in a country outside the EU), a) a declaration verifying the beneficial owner’s personal information and b) any relevant evidence demonstrating compliance with international standards equivalent to the disclosure requirements under EU law which ensure that the beneficial owner’s information is transparent.
It should be noted that in tenders financed by the RRF, all candidates / tenderers are required to submit, inter alia, a solemn declaration stating their commitment to comply with the provisions of Regulation (EU) 2021/241 establishing the Recovery and Resilience Facility (L 57/17).
C. CONTRACTS FUNDED BY THE RRF AND PRE-CONTRACTUAL AUDIT
Regarding contracts concluded under the framework of the Recovery and Resilience Facility, as well as any contracts co-financed using funds of the European Economic Area, paragraph 3 of Article 324 of Law 4700/20202 applies, according to which: “3. Specifically, the contracts mentioned in paragraphs 1 and 2, which are co-financed by EU funds, including any contracts concluded under the Recovery and Resilience Facility, as well as those co-financed using funds of the European Economic Area, are subject to a mandatory legality audit which is conducted prior to their conclusion by the Court of Auditors, if the estimated expenditure, excluding value-added tax, exceeds the amount of five million (5,000,000) euros. (3)
With regard to the contracts mentioned in Article 5B of Law 3986/2011, concluded between the HRADF and the respective Beneficiary of the Projects or the Contracting Authority and financed by the RRF, the Court of Auditors, in its Decision No. 50/2022 issued by the 7th Auditing Department, ruled that the said contract was rejected as inadmissible.
The reason for such ruling, according to the Court of Auditors, was that the contract in question did not result from the contractual freedom of the parties since it was concluded following the decision of the Strategic Project Government Committee. The content of the terms of the contract is determined by the provisions of Article 5B of Law 3986/2011, and there is no significant room for negotiation between the parties, neither with regard to the contracting parties nor to the specific terms contained therein. Therefore, considering that the pre-contractual audit of public contracts was established by the Court of Auditors to ensure the protection of the public interest from potential errors or corruption of the administrative bodies in the process of concluding public contracts, and to promote transparency and the citizens’ trust in public administration, there was no reason for a pre-contractual audit (4)
In conclusion, it should be stressed that the Recovery and Resilience Facility presents a historic opportunity to implement projects and programs that will contribute to the overall development of the country. Of course, to harness these funds, it is necessary to implement the facilities and safeguards mentioned above, which constitute specific requirements of the RRF in order to cover the financing of the relevant projects. Therefore, the RRF is an essential tool that can reshape the way public procurement is carried out and serve as the driving force for the faster and more effective completion of projects and reforms.
1 See here
2 As amended by article 135 paragraph 1 of Law 4926/2022, GG A 82/20.04.2022 and, according to paragraph 2 of this article, it also includes contracts concluded before this law came into force.
3 Prior to the relevant amendment mentioned in paragraph 3 of Article 324 of Law 4700/2020, paragraph 3 previously stipulated that “Especially for the contracts of paras. 1 and 2, which are co-financed using EU funds, a legality review shall be carried out by the Court of Auditors prior to their conclusion, if the estimated expenditure, excluding value added tax, exceeds the amount of five million (5,000,000.00) euros”, in relation to which the Plenary Session of the Court of Auditors ruled in its decision No. 380/2022 (issued on 2.3.2022) that contracts which are to be co-financed by the RRF are exempt from the scope of para. 3 of Article 324 of Law 4700/2020.
4 See in detail para. 12 of that decision.
-> You can read Anastasios’ article as published at Sinigoros magazine in Greek below.DOWNLOAD