The crime of rigging the tender is regulated in article 235 of the TPC titled “Crimes Regarding Economy, Industry and Trade”.
TPC article 235/1 regulated the basic form of the crime and stipulated a prison sentence of three to seven years for the person who committed this crime. This crime is being investigated ex officio.
The tender is defined by the Turkish Language Institution as the awarding of works, goods and services to the most suitable bidder in an open and competitive environment, through reduction or increase methods. The definition of the tender is made in the 4th article of the State Procurement Code numbered 2886 and the 4th article of the Public Procurement Law numbered 4734.
The offense of bid rigging occurs when fraudulent acts are carried out during the tender process made on behalf of the public or through public institutions, violation of confidentiality, unlawful acts and situations that prevent the tender from being duly executed or concluded. In order for this offence to occur, there must be a tender or a rental tender for the purchase and sale of a good or service in accordance with the legislation.
The purpose of regulating the offence of bid rigging is to protect the trust in public officials, the financial and financial interests of the public, the economic interests of the people participating in the tender and the competitive environment.
The offence of bid rigging occurs when the perpetrator commits one or more of the crimes listed in article 235/2 of the TPC. Therefore, it is an optional offence. Apart from the actions regulated in this article, this offence does not occur in the event of another act contrary to the procurement legislation.
TPC Article 235/2 regulates the cases that bid rigging occurred in the tender. According to this;
Fraudulent behaviour is when a person urges another person to make or not to make a declaration of will with his own actions. According to the text of the article, the following actions will constitute the offence specified in the article;
Who will participate in the tenders is specified in the specification determined by the tender commission. According to this specification, not accepting a person qualified to participate in the tender constitutes a fraudulent behaviour. This offence can be committed in the entire process starting from the tender decision until the contract is signed. Fraudulent acts made after the contract has been signed and after the tender is realized do not constitute this offense.
Bidders are responsible for the accuracy of the documents requested from them. The person participating in the tender by preparing a false document and submitting it to the administration will be responsible for the offence of bid rigging. If a tenderer who does not meet the qualification to participate in the tender is prevented from participating in the tender, this offence will not occur since there will be an uncommitable offence here.
This offence occurs if a person enters the tender without having sufficient qualification.
This offense also occurs if the person who is not qualified as a party is favored by the tender officer, entering the tender.
It occurs when the proposal of a person in accordance with the specification is not evaluated. This offence is committed by authorized persons in the tender. Therefore, it is a specific offence.
It occurs when the proposal of a person who does not comply with the specification is taken into consideration. It is committed by authorized persons in the tender. Therefore, it is a specific crime.
In accordance with Article 5 of the Public Procurement Law, administrations are obliged to maintain order in tenders and to create an environment of free competition. The disclosure of confidential information to others prevents the tender from being implemented in an environment of free competition. This offence occurs when the information related to the offers, which should be kept confidential according to the procurement legislation or specifications, is shared with others.
Force means that a person is forced to commit a offence although he / she does not want to. In order for the offence of bid rigging to occur, those who have the qualification or conditions to participate in the tender should be prevented from entering the tender by force.
Threat is to cause an offence to be committed by frightening a person by reporting the harm that will be applied to his or his closes. For the offence of bid rigging, the threat must have been committed against the representatives of legal entities and real persons, or their legal representatives or attorneys, who are qualified to participate in the bid. Threatening a person who is not qualified to participate in the tender not to participate in the tender does not constitute this crime.
Unlawful acts involve the prevention of a person who is eligible to participate in the tender with illegal acts other than force or threat. This includes issues such as misleading the person qualified to enter the tender, providing incomplete or incorrect information to the person.
Agreements made before or during the tender constitutes offence if they are intended to affect the terms of the tender, especially the price. It is regulated as a specific offence. In case of committing this crime, the tender is prevented from being held in free competition environment.
In accordance with Article 235/3 of the TPC, the situation in which less punishment should be imposed for the offence of bid rigging has been regulated. In the case of bid rigging, if there is no damage caused to the public institutions or organizations due to this offence, the perpetrator is sentenced to imprisonment between one and three years. However, the perpetrator should not have committed the offence of bid rigging the with fraudulent behavior.
Again, in the same paragraph, the basic limit of the penalty to be imposed in case of commission of the offence with force and threat is determined. The penalty of the person who commits the offence of bid rigging with force and threat, cannot be less than 5 years. If, as a result of the use of force and threat, the qualified cases of wounding occur, the perpetrator will also be punished for this offence.
If no public damage has arisen as a result of the offence of bid rigging, the statute of limitations is 8 years from the date of the offence. If there is a public loss, the statute of limitations is 15 years.If this crime is committed by force or threat, the penalty statute of limitations is 20 years. It is 10 years if there is no public loss.
Related Court of Cassation Decisions
“The accused does not provide cleaning services by tender, and as can be understood from the contracts in the file, schools have procured services from the defendant through direct procurement in accordance with the "Article 22 sub clause d" of the Public Procurement Law No. 4734, titled "direct procurement", in other words, there was no mistake in the acceptance of the court based on the grounds that the legal elements of the offence of bid rigging were not formed.” (15th Criminal Chamber 2017/37656 Case No., 2020/12743 Decision No.)
“In article 235 of the TPC, cases of bid rigging are considered as restricted by the legislator, and when it is examined together with the justification of the text of the article, the optional actions or the expansion will be contrary to the principle of legality in article 2 of the aforementioned Law; In cases listed in subparagraphs "a" and "b" of the 2nd paragraph, the relevant officials who took part in the tender process, and in the case specified in the "d" clause, the persons who participated in the tender or wanted to participate in the tender may be the perpetrators of the offence, therefore, the offence in question may be committed by persons with special characteristics, that in this respect, the offense of rigging the tender, which is a specific crime according to article 40/2 of the TPC numbered 5237, is therefore not eligible for indirect activity and can be committed by persons involved in the tender process in accordance with article 235 / 2- (a-1) of the TPC, so cannot be committed by the defendant…” (5th Criminal Chamber 2017/233 Case No., 2020/12559 Decision No.)
“…A commission decision was taken on 15/03/2013 to award the tender for the elevator construction of the service building of the Governorship to the company that offered the most economically advantageous bid. This decision was approved on 18/03/2013, but the defendant who submitted a bid on behalf of the elevator company objected to the commission decision on 27/03/2013. While the appeal and bidding process was continuing, the defendant offered the Elevator representative to withdraw from the tender for 15,000 TL. Notwithstanding that this act of the accused constitutes the offence of attempting to make an open or collusion agreement with the person participating in the tender to affect the price within the scope of Article 235/2-d of the TPC numbered 5237 and Article 235/1, 35, instead of his conviction for the guilty offence, the verdict of his acquittal in writing as a result of a biased evaluation, required the reversal.” (5th Criminal Chamber 2016/4878 Case No., 2020/11332 Decision No.)