The formality principle in public procurement case-law


The Greek Courts and especially the Council of State (Symvoulio Epikrateias) follow an extremely formalistic approach which, in the judges’ opinion, derives from the principle of equal treatment between candidates in a Tender procedure.
However, as one can judge by the below gleaned recent flagrant cases , the use of this approach often results in the exclusion of the most advantageous offers and is only based in trifling deficiencies in the applicants’ file.

Case no

reasons for exclusion

  • 228/2013
Ten out of 658 duty stamps (ensima) glued on the documents were missing.
  • 3231/2012
Documents were not in the right order in the submitted file of the offer.
  • 41/2012
Wrong numbering and order of pages in the submitted file.
  • 62/2012
Lack of exact wording referring to “simple copies” instead of the correct “certified copies”. Also lack of validation duty stamp (epikyrosimo).
  • 38/2011
Lack of the exact document proving the Operation License of the candidate- the operating license is proven by other documentation in the file.
  • 372/2013
Simple Copies and not stamped validated copies.
  • 386/2012
Signature not Authenticated by Authorities.
  • 441/2013
Signatures on affidavit not certified by a notary public but by a public authority of similar certification power according to the law of the issuing member state.
  • 488/2012 (Court of Appeal)
Lack of reference in the declaration that the shareholding of the company is true and accurate within 30 days from the submission of the file in the Tender procedure although such date is evidenced by the validation of the signature of the representative signing he declaration.
  • 1970/2013
Not exact referral to all geotechnical calculations even if this does not affect the financial offer.