Turkey: Legal Remedies Under The Public Tender Act

Public tenders made in order to optimize the public budget are integral part of commercial world in terms of traders and related parties. Tender processes in relation to the public tenders, conclusion of a contract and the process after the conclusion of a contract are rather serious processed which should be handled by subject matter professionals. In fact, total of 164,327 tenders were made within the year of 2015, total of 3,720 complaints were reviewed in these tenders, 3,638 dispute decisions were issued, and total of 8,401 active prohibitions were registered in the year of 2015^[1]. Because of all these reasons, we will tell about "Legal Remedies in Public Tenders" in order to guide the traders and those interested in this matter.

In this post, we analyzed basic procedures and principles regarding the complaints and complaint application for objection to be issued by the bidders, those interested in or possibly will be interested bidding on the grounds that the proceedings and actions during the tender process are illegal as well as examination of and making a decision about these complaints in tenders made under the Public Tender Act numbered 4734.

Remedies

1. Remedy for Complaint Applications

Remedy for Complaint Applications refers to the applications issued to the administration by bidders, those interested in or possibly will be interested bidding on the grounds that the proceedings and actions during the tender process are illegal.

One of the most important elements of remedies in public tenders is application periods. Accordingly, in terms of remedies for complaint applications, in case of sudden and unexpected events or events which couldn't be foreseen by the administration like risks of natural disasters, epidemics, loss of life and property, which are expressed in clauses of b and c of Article 21 of the Law numbered 4734, and in case the tender is required to be made immediately, the term is 5 days; and the applicable term is 10 days for the tenders to be made under other procedures.

Complaint applications should be issued to the administration with signed petitions addressing the administration. As per the legislation, there is a written form requirement for such applications and the points to be included in the application petitions are regulated in detail in the Notification regarding the Applications for Tenders. Accordingly, applicant's name, last name/business name, address and if available, email address and fax number, their deputy/delegate, name of the tender in question, tender registration number, realization date of the actions in question and reasons of complaint should be expressed clearly in the application petitions.

Following the review of complaint application by administration, a decision of canceling the tender, or determining remedial actions if it is possible to address the problems by making corrections and not to suspend the tender process, or dismissing the tender will be made within 10 days.

In case the decision made by the administration is found unacceptable for a complaint application, or a decision can't be made within the term specified, or a cancellation decision is made for the tender won by the administration after the complaint application for objection is issued, a complaint application for objection can be issued directly to the Public Procurement Authority.

2. Complaint Application for Objection

Complaint application for objection is a remedy in case the tender is canceled for any reason on or after the date the application petition is registered by the administration, or a decision is made to cancel the administration's tender after the Authority decides to dismiss the application or to determine the remedial action, if the decision made by the administration is found unacceptable for a complaint application or a decision can't be made within the term specified following a complaint application for objection is issued.

As is the case with complaint applications, application periods are also rather important for complaint applications for objection. Accordingly, in terms of remedies of complaint applications for objection, in case of sudden and unexpected events or events which couldn't be foreseen by the administration like risks of natural disasters, epidemics, loss of life and property, which are expressed in clauses of (b) and (c) of Article 21 of the Law numbered 4734, and in case the tender is required to be made immediately, the term is 5 days; and the applicable term is 10 days for the tenders to be made under other procedures.

Complaint applications for objection must also be made with signed petitions addressing the Authority in writing and in person or by mail. Complaint applications for objection are reviewed limited to the applications made for the Notice or preliminary qualification/tender document, allegations of the applicant and the aspects specified in the decision made by the administration following the complaint. As is the case with complaint applications, the requirements regarding the petitions of complaint applications for objection to be made to the Authority are explained in the Notification. Accordingly, applicant's name, last name/business name, address and if available, email address and fax number, their deputy/delegate, name and address of the administration making the tender, the subject of the complaint application for objection and name of the tender, tender registration number, the date on which the tender document is purchased, date of the application to the Administration, notification date of the decision made by the administration following the application should be expressed clearly.

While there is no fee provided in the legislation for complaint applications to the Administrations, an application fee should be paid to the bank accounts of the Authority as per the Article 53 of the Law numbered 4734 for applications to be made to the Authority. The applications fees change each year and it has been indicated on the documents in tender notices of EPPP (Electronic Public Procurement Platform) that there will be fees for tenders.

3. Lawsuit Remedies

Under the Public Tender Act, another condition to be able to apply the administrative justice is, as stated above, having completed the processes of complaint applications and complaint applications for objection. Those suffered from the proceedings of the administration can file a claim for cancellation of the administrative proceedings. The claims against the administrative proceedings and actions of the administration, which made the tender, should be filed to the administrative court located within the jurisdiction of the administration. The claims should be filed within 60 days after the date the decision is communicated of deemed to be communicated. This term is the latest term and a claim can't be filed after this term. In addition, there should be a decision made against the bidder in order to file a claim.

Due to process of our law, the agreements concluded with the administration following a tender are deemed to be private law contracts and disputes regarding these agreements are to be settled by means of judicial justice. Term of litigation is determined according to the Turkish Code of Obligations.

The claims filed regarding the rights of the employees working in the tender in question under the labor legislation should be heard in labor courts.