The legislature favored Class 7 companies, effectively creating a “virtuous circle” of businesses that could “sweep” public works, as opposed to Companies 1-6 classeswhose development is “curtailed” by its limit backlog. This is an extremely interesting conclusion reached by the Joint Authority for Public Procurement, canceling the tender of the Epirus region after the appeal of two companies that could not participate due to work in progress. Her decision EADISY it does not directly affect the legislation, however, it can become a starting point for other similar appeals.

Her competition Epirus region it concerned the restoration of the provincial road Pygadion – Plaka Bridge and had a budget of 23.6 million euros. The association of companies Mesogeios SA approached EADISY. (grade 6) and MT ATE (grade 4), who could not take part in the competition due to the backlog limit.

In particular, from the legislation on public works (p. 4412/16 and 4472/17) companies of the 1st – 6th class applying for a project must, in addition to relevant experience and financial sufficiency, not exceed in the latter a quarter of a certain limit backlog. For companies in the 6th class, this limit is 132 million euros, and for companies in the 4th class – 22.5 million euros. On the contrary, in the 7th class (which includes the largest construction companies in the country), there is an alternative way to calculate the backlog.

According to the applicants, “While a Grade 7 company increases its lag limit as turnover increases, a company classified as lower must wait until its Grade is raised. Especially for 7th class companies, a business cycle is created that is almost impossible to break, as a backlog cutter is set, which prohibits smaller companies from joining forces to implement larger projects. They note that only contracts with the state are counted in the backlog, leaving a company that deals exclusively with government projects “at a disadvantage compared to one that deals with private projects.” Companies based abroad are also in a better position.

As EADISY notes, the company’s backlog “can only be considered as a principle of proof, not as full evidence, and cannot legally lead to the exclusion of a candidate”, which is contrary to Directive 2014/24/EU.

The Joint Public Procurement Authority rejected the Epirus region’s argument that the backlog limit was set to prevent over-concentration of projects by a few companies. “Instead, the legislature has created a closed loop of businesses that can take on large public works contracts, setting a formula for upskilling, widening the 7th grade gap, and changing the shape of the backlog. Therefore, it is virtually impossible for a Tier 6 enterprise to move to Tier 7 except by merging with another,” he says.