THE REPUBLIC OF TURKEY

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Review and Remedies Procedures in

Turkey

7th IPA Regional Public Procurement Conference

9 – 10 September 2014 Vlora, Albania

ERKAN OZDEMIR

Public Procurement Specialist

Regulation Department

Public Procurement Authority erkanozdemir@kik.gov.tr

Who Can File a Complaint?

The Turkish legislative framework on remedies is provided

for by PPL No.4734 and its complementary secondary

legislation. The PPL contains detailed rules for review and

complaint procedures.

Who can file a complaint?

The PPL limited locus standi to actual or potential

tenderers and candidates who claim that they have

suffered a loss of right or damage or are likely to suffer a

loss of right or damage due to unlawful procedures or

actions within the process of the tender.

(In order to become a potential tenderer, tender or pre-qualification documents

must be purchased)

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Stages of Complaint Review System in

Turkey

The PPL establishes a three-tier system for reviewing

complaints lodged by disgruntled economic operators.

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Complaint

application to the

Contracting

Authority In the first stage a complaint

must be submitted to the

contracting authority itself

within 10 days (5 days in the

case of emergency contracts)

running from the date when the

decision being challenged was

sent or published or in any

event ten days running from

the notification of the

contracting authority’s decision.

Appeal application

to the Public

Procurement

Authority A complainant who is

dissatisfied with the

decision of the contracting

authority may, as a second

step, appeal this decision

to the PPA within 10 days.

Appeal to the

Administrative

Courts The final decision on

the appeal made by the

PPA is then subject to

the jurisdiction of the

administrative courts

within a period of 60

days.

Standstill Period and Automatic

Suspensison

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In December 2008 an extensive amendment to the PPL

was adopted, notably to strengthen the review procedure.

Two important steps have been taken in order to ensure

that the Turkish review system meets the requirements of

EU law.

1- The minumum standstill period between notification of the

award decision and conclusion of the contract and,

2- Automatic suspension of the possibility to conclude the

contract upon complaint,

were introduced to the PPL through this amendment.

Standstill Period and Automatic

Suspension

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Pursuant to Art.41 of the PPL the contract may not be

signed,

Unless ten days have passed in general,

and unless five days have passed in the case of

emergency contracts specified in article 21(b) and (c)

of the PPL.

following the notification of all the tenderers about the

tender result.

Standstill Period and Automatic

Suspensison

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Furthermore, where an economic operator challenges the

tender result before the contracting authority within the

designated period (10 or 5 days), the suspension of the

conclusion of the contract will continue till the notification

date of the authority’s decision and where sequential

appeal is made to the PPA within ten days following the

decision by the contracting authority, suspension will

continue till the decision on appeal has been taken by the

PPA.

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Ineffectiveness

With regard to the concept of ineffectiveness, there is no explicit

provision in the PPL.

However, Art.56 of the PPL provides that conclusion of the

contract without complying with the standstill periods and

procedures set out in the PPL does not constitute an obstacle

for the PPA to review the application and take one of the

decisions stated in Art.54 of the PPL. (i.e. setting aside,

corrective action and rejection of the application).

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Ineffectiveness

It is established practice that if the failure to apply the

standstill period is combined with an infringement of the

substantive rules, the PPA can set aside the award decision

which ultimately results in the termination of the concluded

contract by the contracting authority itself, as the legal basis

of the contract has been removed.

Turkish system on ineffectiveness is partially in line with the

Art.2d of the Remedies Directive, which states that under

certain cases specified therein a signed contract must be

considered ineffective by a review body or its

ineffectiveness must be the result of the decision of such a

review body.

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Alternative Penealties

Although the sanction of ineffectiveness implicitly exists in

the Turkish remedies system, unfortunately the PPL does

not provide any provisions on alternative penalties which

review bodies (PPA or administrative courts) may impose on

contracting authorities such as the shortening of the

duration of the contract and/or the payment of a fine.

In this respect Turkish remedies system seems to conflict

with the Remedies Directive and so further legaslative

initiatives are required to meet the requirements of the Art

2e of the Remedies Directive.

Specific Remedies 10

Upon application the PPA shall take the final decision

within 20 days in general,

within 10 working days for the appeals against tenders

conducted in urgent cases and against actions taken by

the contracting authority to cancel the tender upon a

complaint or appeal.

Specific Remedies 11

The PPL provides two specific remedies to be made available to

disappointed economic operators in actions against contracting

authorities, as follows:

i.the corrective action ii.the annulment of the procurement

proceedings

Therefore the PPL gives one of the powers to the PPA specified in

Art.2(1) (b) of the Remedies Directive. (i.e. setting aside of contracting

decisions)

in cases where the

infringement may be

remedied through

correction and where

it is not necessary to

interrupt the

procurement process

where the infringement would

constitute an obstacle for the

continuation of the tender proceeding

and which cannot be remedied by

taking corrective measures

Specific Remedies 12

However, there is no provision for interim measures and

compensation for damages in the PPL.

As indicated above, in cases of the initiation of review

proceedings against any contracting decisions, the

contract cannot be concluded until the PPA has taken its

decision.

Since contracting authorities cannot conclude the contract

before the PPA has made a decision on the merits of the

case, this automatic suspension of the possibility to

conclude the contract seems to obviate the existence of

interim measures with regard to procurement process

within the Turkish review system.

Damages 13

There is no provision in the PPL regarding the award of

damages; the PPA is not given the power to grant compensation

for damages.

Nonetheless damages can always be claimed before the

administrative courts pursuant to Art.125 of the Turkish

Constitution and Art.2 of the Procedure of Administrative Justice

Law.

Since the Remedies Directive allows the Member States latitude

to assign different tasks concerning the remedy procedure to

separate bodies responsible for different aspects of the review

procedure, the fact that under the Turkish review system the

award of damages to persons harmed by an infringement is a

matter for the administrative courts should not be seen to

contravene the Remedies Directive.

Main Figures on Complaint

applications to PPA in 2013 14

Procurement

type

No.of

complaints

No.of

Procurements*

Share in Total

Goods 854 45.781 1,87

Services 3.034 25.227 4,78

Works 1.205 45.921 6,66

Total 5093 116.929 4,36

*Exceptions are not included.

Further Developments 15

Turkey, as an EU candidate country, needs to bring its national review system on public procurement to full compliance with EU legislation before accession. In the last decade, Turkey has taken some important steps towards this objective.

Although these developments have enhanced its compliance with the Remedies Directive, there are still some steps that need to be taken to ensure that the Turkish review system meets the requirements of EU law. For this purpose, further legislative initiatives will be introduced before accession.

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THANK YOU FOR YOUR

ATTENTION