The State Procurement Law was published in the Official Gazette in 1983 and entered into force. The law regulates the purchase, sale, service, construction, rent, barter, property rights establishment and transportation works of the offices included in the general budget, annexed budget administrations, special administrations and municipalities. However, with the enactment of the Public Procurement Law No. 4734 and the Law No. 4735 on Public Tenders on public tenders, the field of application in public expenditures has ended. On the other hand, the State Procurement Law No. 2886 is applied in sales, leasing, bartering, and establishing limited real rights.
Which Administrations Does the State Procurement Law Apply to?
The State Procurement Law does not have a wide application area as the Law No. 4734. It is applied in tenders for providing income to the public of the general budget departments, public budget administrations, special administrations and municipalities.
What are the Tenders Under the State Procurement Law?
This Law is applied in procurement, sale, service, construction, leasing, barter, establishment of real property rights and transportation works that are not regulated within the scope of Law No. 4734. Article 4 of this Law has made the definition of these works.
Who is the Contracting Authority?
The submission officer of the administrations are authorized to do the works specified in the State Procurement Law and to tender. The submission officer is the top manager of the administrations to which this Law will be implemented.
The submission officer is obliged to assign commissions to be established with the participation of at least one person and finance officer from the administration under the chairmanship of one of the officers of the relevant administration, provided that he is a competent or expert in the works.
What Are The Conditions To Participate In The Tender?
As it is known, the State Procurement Law is applied in tenders to provide revenue to the public. Persons wishing to participate in these tenders must have legal residence, possess the necessary qualifications and competencies, and submit the required guarantees and documents.
The submission officers of the contracting authority and their relatives including second degree, those who are in charge of preparing, executing, finalizing and supervising the tender procedures, and the partners of these persons cannot participate in the tender. In addition, persons who are prohibited from participating in public tenders cannot participate in the tenders.
Can Tender Subject Jobs Be Divided into Parts?
The works that make up the subject of the tender cannot be divided into parts. However, if the willing person is absent, important work can be divided into parts, but not in a way that changes the way they are recruited. The specification indicating all kinds of features of the works related to the subject of the tender shall be prepared by the administration. The issues to be shown in the specification are clearly stated in the 7th article of the Law.
How is the Tender Announced?
The Administration is obliged to prepare a certificate of approval for each work to be tendered. In the certificate of approval was included that the type, nature, quantity of the work subject to the tender, the project number, if any, the estimated cost, the available allowance amount, the conditions if the advance and price difference will be given, the procedure to be applied in the tender, the form and the number of the announcement if it will be made, the amount of the bid bond if it is to be received.
The tender is announced twice in daily newspapers where the tender will be held, at least one day apart. It cannot be less than 10 days between the first announcement to be made in the newspaper and the tender day, and less than 5 days between the last announcement and the tender day. If there are no daily newspapers in those places, the announcement is made with the articles to be posted on the notice boards of the administration and the government and municipal buildings and the municipal broadcasting tools.
If the tender is to be announced in a city other than the place where the tender will be held, it will be announced once more in one of the daily newspapers to be determined by the Press-Advertisement Institution, at least 10 days before the tender date, considering the tragedy.
The announcements to be made in the Official Gazette are announced at least 10 days before the tender date. The contracting authorities are free to announced the tenders.
Announcement is made at least 45 days before the date of the auction for the auctions that are deemed beneficial for the bidders in foreign countries by the contracting authorities.
Is It Necessary To Provide Guarantee When Entering The Tender?
A bid bond of 3% of the estimated price of the work subject to the tender is received from the bidders. In the negotiated tenders, the administrations are free to buy or not receive a bid bond. Money, letters of guarantee (indefinitely) and bonds given are accepted as collateral.
What are the Tender Procedures?
Article 35 of the State Procurement Law regulates what the tender procedures are. These procedures;
Closed offer procedure,
Closed bidding procedure among certain bidders,
Open offer procedure,
Restricted procedure,
Competition procedure.
Closed Offer Procedure
In the sealed offer method, the offers are made in writing. After the bid letter is put in an envelope and closed, the name, surname and open address of the bidder are written on the envelope. This envelope is closed by putting it in a second envelope together with the receipt or bank letter of guarantee and other required documents. It is obligatory that the bid letters be signed by the bidder and that the specifications and its annexes are fully read and accepted, and the offered price is written clearly in numbers and letters.
When the opening time of the offers arrives, the number of offers submitted is stated in a report. The outer envelopes are opened in the order of receipt in front of the present bidders and it is searched whether the required documents and bid bonds have been given in full. The business envelopes of the bidders whose documents and guarantees are incomplete and in accordance with the procedure are not opened and returned to them or their representatives together with other documents without further processing. These people cannot participate in the tender.
The tender is finalized by receiving oral or written bids from the bidders present at the session, provided that it is not below the highest valid bid in the auction auctions made with the closed offer procedure. However, if the number of valid bids is more than three, this process is done by including the bidders with the highest three bidders present in the session, and if there are more than one bids that are the same as these three bids, these bidders are included.
Closed Bidding Procedure Among Certain Bidders
Aircraft, warship, warfare ammunition, electronic equipment, military installations and supplies, weapons and material systems, activities related to the defense industry and all kinds of spare parts for these; dams, power plants, irrigation facilities, ports, docks, airports, railways, locomotives, highways, tunnels, bridges, fuel facilities, construction works with special features and art works with technical features, plans for the transportation systems of cities, maps, master and The tender of zoning plans, water, sewerage and energy facilities and their survey and project works can be made by closed bidding method among at least three bidders whose technical competencies and powers have been accepted by the administration.
It is not obligatory to make an announcement with these tenders.
Open Offer Procedure
According to the open bid procedure, tenders are made by the bidders to verbally state their bids before the bidding commissions. But; bidders may also send their bids by registered mail with return receipt, provided that they have reached the chairmanship of the commission until the tender time specified in the announcement.
When the tender time specified in the announcement arrives, the head of the commission examines the documents of the bidders and whether they have given bid bonds and informs who can participate in the tender. After the first bids are determined, the chairman of the commission ensures that there are bids made by mail, and that these bids are written on the auction and decrement paper of the bid. After that, the bidders continue to make their offers in turn. Those who withdraw from the tender cannot bid again. After receiving the final oral or written bids, the tender is decided.
If there is no bidder in the tenders made with the open bid method, if the documents or the final bids of the bidders are not approved, the tender is opened again with the same procedure or if the benefit of the administration is seen, the job can be restricted procedure within 15 days from the end date of the tender.
Restricted Procedure
Receiving offers in restricted tenders does not depend on a form. The works to be done by the bargaining method are shown in Article 51 of the Law. These works;
Jobs that do not exceed certain amounts to be shown in the General Budget Law each year and do not show continuity in terms of location, characteristics (including the establishment characteristics of military units) and qualifications,
All kinds of needs of the Armed Forces required by the maneuvering and planned exercises,
Jobs that need to be done in a hurry,
Jobs that clearly cannot be obtained through other tender procedures,
Purchase of necessary items within the period until the conclusion of the re-tenders due to the failure to make the tender or the termination of the contract,
Letting the shares of the administrations in the immovable properties they own jointly or in partnership to the stakeholders,
Lease of movable and immovable property owned by the State, exchange of real property rights, leasing of the places under the jurisdiction and disposal of the State, and the establishment of non-remittances of the property,
All kinds of services, education, research, study and project, planning, consultancy, exploration, map, photography, film, printing, exhibition, control, inspection work and other technical, intellectual and fine arts work that are beneficial to have certain bidders due to their characteristics works,
Special packaging, protection, insurance and transportation works of goods such as money, bonds, bills, stamps, gold, silver, jewelery, fine arts or items with historical value,
The sale of goods that are perishable, dangerous to hide, higher than the value of the storage expenses or the benefit that will arise without waiting,
Purchase or rental of movable goods, rights and services held by a single person or firm, and certain immovable properties,
Buying animals for army riding and pack animals as breeders or to produce vaccines, serums or to be used in control and research works,
Jobs whose obligation to be kept confidential due to National Security is accepted by the President,
Removal of sunken ships belonging to the treasury and goods that have fallen into the sea,
All kinds of purchasing, leasing, repairing, making, exploring, assembly, insurance, transportation and service works that must be provided from foreign countries due to their characteristics.
Competition Procedure
The administrations can have all kinds of studies, plans, projects and works related to fine arts done through a competition.
Is Collateral Given After Tender?
All tenders are linked to a contract. In order to ensure that the commitment is fulfilled in accordance with the provisions of the contract and the specification, a performance bond of 6% is obtained from the person who receives the contract before the contract is made, calculated over the tender price. After the conclusion of the contract, the bid bond is returned.
The performance bond is given back to the person who receives the tender, after it is understood that the commitment has been fulfilled in accordance with the provisions of the contract and the specification and it is determined that the contractor does not have any debts to the administration due to this work.
Can the Contract Made Be Transferred?
The contract can be transferred to someone else with the written permission of the submission officer. However, the person transferred must meet the terms of the tender.
What Happens If the Tenderer Does Not Fulfill Its Duty?
If the contractor or the customer relinquishes his commitment or fails to fulfill his commitment in accordance with the specifications and contract provisions, and the same situation continues despite the administration's notice of at least 10 days and the reasons are clearly stated, the performance bond is recorded as revenue and the contract is The account is liquidated by terminating. In case of bankruptcy of the contractor or the customer, the contract terminates and the damages are liquidated according to general provisions.
Can the Tender be Canceled?
Tender commissions are free to make the tender or not by stating the reason. The decision of the commissions not to bid is final. Tender decisions taken by tender commissions may be canceled within 15 days at the latest by the submission officers.
Is the Path to Complaint Open?
Compulsory administrative remedy is not foreseen for candidates who claim to have lost their rights due to illegal transactions or actions in the tender process.
Can the Administration Prohibit Bidders from Participating in the Tender?
During the preparation, execution and finalization of the tender procedures; to conducting or attempting to rig the procurement proceedings through fraud, threat, influence and benefit or by other means, to speak words that will make the bidders uncertain and to make signs and behaviors that imply a call for agreement between the bidders or to negotiate and discuss in a way that will distort the accuracy of the tender, and to use or attempt to use false documents or false guarantees, not to fulfill its commitment in bad faith, to do things that will harm the administration while fulfilling its commitment, or to use fraudulent materials, tools or procedures during the performance or delivery of the work was forbidden. If these acts and behaviors are fulfilled, the parties will be banned from participating in all tenders for up to one year.
In Which Court Can A Lawsuit Be Filed In Tender Disputes?
By the administrative jurisdictions of the disputes that may arise from the procedures established at the tender stage within the framework of the State Procurement Law No. 2886 or other tender legislation; After the tender phase is completed and the contract is signed between the parties, the disputes arising from the implementation of the contract should be addressed at the judicial court.
Relevant High Judicial Decisions
“The transfer of the contract signed by the defendant municipality at the request of the other party of the contract was approved, a new contract was signed between the new company and the defendant municipality, the contract was extended for another ten years with the decision of the Municipal Council dated 18/09/2007 and numbered ..., and additional advertising units It is understood that the decision was made to be placed and the case was opened.
In this case, considering that the dispute does not arise from the implementation of the contract, it is alleged that the transfer of the contract to a third party and then the change of the duration and scope of the work by the decision of the council is unlawful, it is concluded that the administrative judiciary is responsible for the handling and resolution of this case.
In this respect, there is no compliance with the procedural provisions in the appealed Court's decision to dismiss the case on the grounds that the dispute falls within the jurisdiction of the judicial judiciary, by qualifying it as a dispute arising from a private law contract.” (Council of State 13th Department, Case No:2015/5626 , Decision No:2019/133 )
“In tenders subject to the Law No. 2886, the closed bid procedure is essential, but it is possible for the tenders whose estimated value does not exceed the amount determined by the General Budget Law every year to be made by open bid method, the bidding and announcement procedure will be determined according to the estimated price, These procedures will be determined according to the estimated sales amount of the subject movable or immovable property, and in tenders for the establishment of rent and easement rights, these procedures should be determined based on the sum of the minimum amount to be paid to the administration during the rental or easement period. Otherwise, an uncertainty will occur while determining the tender and announcement procedure for one-month, one-year or ten-year lease auctions, and the total estimation in a short-term lease tender, long-term lease up to ten years, or even in tenders related to easement rights that can last up to forty-nine years. ) Although the price increases, it is doubtless that a result that does not comply with the letter and purpose of the Law will occur, such as the implementation of the same tender and announcement procedure.
It was put out to tender by the Municipality of ... province, ... district, parcel no ... / ..., ... for the lease of the nursery building on the 2.488.58 m2 real estate property for 10 years pursuant to Article 45 of the State Tender Law No. 2886, It is understood that the monthly rental fee is determined as ...- TL + 18% VAT. Considering that the annual estimated cost of the tender subject to the case is TL (27.750,00-TLx12 months) excluding VAT and the duration of the work is ten (10) years, the total estimated price as of the date of the tender excluding VAT ...- TL ( ...- TLx10 years).
It is clear that a tender subject to the Law No. 2886 can be carried out by open bid method in accordance with Article 45 of the Law, if the estimated price does not exceed the amount to be determined by the General Budget Law every year (for the year 2018….-TL). Considering that the total estimated price in the subject tender is TL excluding VATtThere is no compliance with the law in the tender, which is the subject of the case carried out with the open bid procedure.” (Council of State 13th Department Case No:2018/3736 , Decision No: 2019/298 )
“The trees are located on the immovable sold according to the State Tender Law No. 2886, and the defendant … Municipality has accepted that the immovable has been sold to the other defendant …, together with the amount of the property, in his response to the notice sent by the plaintiff and in the petition for response to the case. According to Article 684 of the Turkish Civil Code, a person who owns something also owns all the integral parts of that thing. Since the defendant … bought the real estate by paying the price in an auction, it is the former owner Municipality who became rich for no reason. In this case, while the court should decide to dismiss the case from hostility in terms of the defendant …, the establishment of a verdict in writing is against the procedure and the law and requires a reversal.” (Court of Cassation 3rd Civil Chamber Case No:2020/10152 , Decision No:2020/7213)