ABSTRACT
In today’s world with the rapid advancement of technology and the spread of internet, it is vitally important that legal systems respond to these developments. In parallel with the advancement of technology, the use of electronic tendering systems in public sector has become widespread all over the world along with traditional tendering methods. Electronic tendering will help build greater public confidence in public procurement processes by increasing competitiveness, transparency, and speed. Therefore, there must be provided appropriate legal and technical infrastructure to ensure effective functioning of electronic tendering systems. This article discusses electronic tendering procedures and methods, the benefits and advantages of electronic tendering, the legal framework, and it provides examples from around the world.
1. WHAT AREELECTRONIC TENDERING SYSTEMS?
1.1. Definition
The use of internet in every field of human life and rapid technological progress necessitate innovations in the field of law. As people want and need to do more and more transactions online in these times, the law must address these needs of people to ensure effectiveness of the legal system.
The electronic public tendering system facilitates the availability and processing of tendering documents online in the procurement of various supplies, services, construction projects, and consultancy1. In this recently developed system, public tendering process is started by the use of electronic means of communication, tender offers are made electronically, and they are rejected or accepted electronically. Electronic public tendering system, during tender process, provides an online communication possibility amongst the tenderers, the suppliers and the authority, who are the actors of the public tendering, by establishing new tendering system based on the information technology instead of the traditional written and printed public tendering system.
1.2. Contributions of Electronic Tendering System to Tender Process
Main advantages of the electronic tendering systems include increased competition and transparency during the tendering process and equal treatment of tenderers by the authority conducting the tender.
With the electronic tendering system; the expenses made by the authority within the tender process is decreased, tender procedures becomes easier and faster, the observation and uninterrupted surveillance from the beginning to the end of the tender process are provided, and the full benefits of enterprise resource planning can be achieved2. In addition, small and medium-sized enterprises can participate at tendering easily thanks to electronic tendering systems3. Finally, it is possible to respond the request and need for making transactions electronically in the globalizing world economy with the electronic tendering systems in accordance with the needs of global commercial life.
According to Ehandel Platform, which examines and explores the contribution of the electronic tendering systems, tendering process in Norway can be concluded between 20-40 percent faster. Similarly, according to Emilia Romagna Agency’s research, administrative expenses in Italy can be decreased for a total amount of 67.5 million Euros with the electronic tendering system.
1.3. Practices of Electronic Tendering Systems in the World
Although a shift from conventional methods to electronic system in public procurement rapidly becomes widespread worldwide; there is no standard system or practice in this area4. However, “Multilateral Development Bank,” established with the cooperation of World Bank, Inter-American Development Bank, and Asian Development Bank since 2002, provides countries with technical and financial support for strategic planning of electronic tendering systems on the basis of specific circumstances of each country5.
In addition to this, electronic tendering system has been being used for a longtime prevalently in the Continental Europe, and the European Union continues to promote and regulate this system by issuing new directives.
1.4. Legislation Regarding Electronic Tendering Systems in Turkey
The legislation allowing electronic tendering system in our country, which aspires to accord its legal infrastructure with European Union, is: Public Procurement Law (PPL), Electronic Procurement Implementation Regulation published in the Official Gazette on February 5, 2011, Liquidation General Communiqué (Electronic Procurement Series No. 1) published in the Official Gazette on April 24, 2014, and Regulation Related to Amending the Electronic Procurement Implementation Regulation published in the Official Gazette on June 7, 2014. The next part will examine electronic tendering system within the scope of these regulations.
2. PROCEDURE OF ELECTRONIC TENDERING SYSTEM
2.1. Core Issues in Electronic Tendering
According to our legislation, electronic tendering is only allowed only for tendering of such public institutions and organizations that are subject to public law under PPL, or that are subject to public audit or using public resources. However, e-tendering system is available only in the stage of individual contract that would be concluded after acceptance of the offer and for the open tender process for purchase of goods.
In the electronic tendering system, the preparation of report that determining what it is needed, the registration and receipt of registration number of the tendering, attachment of the need report to the tendering, submitting the technical specifications, preparation of the preliminary qualification and/or tendering documents, registration of the people who purchase or download tendering documents, the announcement proceedings, making the description and the amendment of announcement, cre ating a tender committee, registering applications and tenders, registering the evaluation of applications and tenders, confirmation processes, the result notification processes, registering the process of cancellation of the tendering are made on Electronic Public Procurement Platform (“EPPP”). EPPP, as defined in the clause 2 of PPL, means “the electronic environment, managed by the Authority, in which the contracting authorities and other stakeholders can conduct the proceedings related to the procurement process via internet”. It is required that authorities, tenderers who wants to tender electronically, and real or legal persons who want to download documents on EPPP have to sign up for EPPP, and the tenderers and those who want to download document have to use an esignature. The notifications are made on EPPP and that date of notification is deemed to be the date of notice in the electronic tendering system.
2.2. Tender Proceedings
Electronic public tendering procedure starts with preparing and recording, on EPPP, the tender document and the report regarding quality, specifications, and amount of goods or services subject to procurement. In addition to these transactions, the Authority discloses the approximate cost of goods and services on EPPP to public by registering it. The documents can be prepared in foreign languages when the tendering is open to foreign tenderers, and the documents in foreign languages are also uploaded on EPPP.
“Administrative specifications to be applied for the tendering in procurement of goods where tenders are to be made electronically” found in Electronic Tendering Application Directive will apply for the tendering in procurement of goods where tenders are to be made electronically. At the same time the technical specifications are to be uploaded on EPPP by the Authority. Besides, the president, the members, and their substitutes of the tender committee, all of whom are appointed by the tender office, are designated by the Authority on EPPP in 3 (three) days following the announcement date at the latest This designation is limited to the tendering in question.
2.3. Announcements and Documentation
By the end of the preparation of the tender proceedings, the announcements of the tendering, the preliminary qualification, the cancellation, the amendment and the result are created on EPPP. For tendering, purchasing and downloading by using the e-signature each copy approved by the Authority is deem to be required; the real and legal persons registered on EPPP are deemed to be required to download the tendering documents from EPPP by using the e-signature for the tendering where tenders are made electronically.
However, in a tendering in which the tenders are to be made electronically and the technical specifications cannot be uploaded on EPPP, it is not possible to download the document by using the e-signature, therefore, it is prescribed to purchase each copy of the document approved by the Authority with “The Form Related to Purchase of the Document” present in the Electronic Procurement Implementation Regulation. In the case where there is a difference between the document to be put on sale by the Authority and the document prepared on EPPP, the latter prevails over the former.
In case of any amendments to the tendering or the preliminary qualification document, the amended document will be uploaded on EPPP, and the real and legal persons who downloaded the document by using the e-signature and those who purchased the document before the registration date will be notified in that regard through EPPP.
2.4. Tenders
Upon the completion of abovementioned steps, e-tenders will be prepared by tenderers on EPPP and send on EPPP by using the e-signature before the tendering date and time. EPPP encrypts that tender and may send the tenderer e-key after the tendering date and time until the opening date and time of tenders. If e-key is not sent by this time and date, the tender will be disqualified from the tendering process.
On the other hand, Public Procurement Authority is allowed to postpone the date and time of the tendering and/or the opening of the tenders up to five business day due to the failure to provide access for an extended period of time arising from technical problems of EPPP system.
In tendering for procurement of goods, tenderers may be required to provide samples. In such case, an administrative specification regarding the delivery method of the sample after the tendering time and date and the receipt and evaluation of the sample by the tender committee will be prepared.
Regarding bank reference letter; for the receipt of the bank reference letter electronically, it is required that the bank hereby signs “the Protocol Related to the Cooperation for Online Information Exchange on EPPP” with the Public Procurement Authority. If bid bonds are to be accepted electronically, the procedure as to the bank reference letter will be applied. After the deposit of the securities other than the bid bond to the accountancy or the treasurers department, the relevant documents are sent by the tenderer within the scope of e-tender.
2.5. Evaluation of the Tenders
E-tenders are opened at the first business day following the tendering date determined in the tendering document and at the same time with the tendering in front of the tenderers and the attendants on EPPP. The proclamation of the number of tenders at the time determined in the tendering document is made by the tender committee. The documents and bid bonds of the tenderers are reviewed to determine any irregularities. In the meantime, no acceptance or refusal will be made; the documents composing the tender cannot be amended or completed. The tenders are evaluated in the next stage. Thereafter the tender committee assembles at a date and time determined by itself and the evaluation of the tenders is started on EPPP. The e-tenders that cannot be opened online, lack required documents or adequate bid bonds or fail to comply with the qualification requirements in other forms will be dismissed.
In principle, if any documents or appendixes that need to be scanned and submitted online are not presented during the e-tender, the Authority may not let the missing documents or appendixes to be completed and these e-tenders must be dismissed. However, if e-tender only lacks non-substantive information, the Authority may let the missing information be completed. In the end of the evaluation, the most economically advantageous tender wins the tendering. Before the approval of the tendering decision by the tender officer, the successful tenderer and the tenderer of the second most economically advantageous tender are checked on EPPP system whether they are prohibited from tender. In case that both tenderers are unpermitted to tendering, the tendering is not approved by the tender officer and the tendering is cancelled. In addition to this, the approval or the cancellation is registered on EPPP.
The documents to be scanned on computer and the documents proving that the tenderer who wins the tendering cannot be disqualified and which cannot be questioned on EPPP by the authority shall be presented to the authority before signing the contract. In case that the tenderer does not present these documents or that there are any contrast between the documents presented and its covenants, the tenderer is disqualified and its bid bonds are registered as revenue. In case the contract cannot be signed with the winner of the tendering, the authority can sign the contract with the tenderer who tenders the second most economically profitable purpose provided that the tender officer agrees. The result of the tendering, after the signing the contract, is recorded on EPPP and published on Public Procurement Bulletin.
3. CONCLUSION
The electronic tendering system, which becomes widespread with the advancement of technology and increasing use of internet, is in development stage in Turkey. The legal infrastructure required for electronic tendering is completed to a great extent. In this regard, using electronic tendering by integrating it to whole tendering process will be possible completely only if the technical deficiencies are overcome and the technical compliance is succeeded.
Considering the advantages of electronic tendering systems, the transparency and competitiveness of the public procurement system will increase in Turkey with the use of electronic tendering. However, it should not be forgot ten that electronic tendering systems involve major security risks in some perspectives such as the transfer of files regarding the tender amongst tender actors; the obstacles as to the integration of technical and legal infrastructure; the fact that there is no uniform application in global scale regarding electronic tendering methods; the lack of technical expertise of the personnel of the public enterprises, disregard of the supply chain management in the public enterprises, the divergence of applications and practices developed by different institutions6 and inability to integrate tendering process in several sectors such as construction into electronic tendering systems7 . It should be also stressed that important roles fall to the government, legislators, and universities to develop solutions for potential risks and problems in the electronic tendering process.
BIBLIOGRAPHY
İmamoğlu, Meltem Yıldırım ve Özbilgin, İmamoğlu, Dr. İzzet Gökhan. “Özbilgin, Türkiye’de Elektronik Kamu İhale Sisteminde Kurumsal Yönetim Ve Birlikte Çalışabilirliğin Önemi.” Bilgi Ekonomisi ve Yönetimi Dergisi VII/I, 2012.
Oğurlu, Yücel. İdare Hukukunda “E-Devlet” Dönüşümü Ve Dijitalleşen Kamu Hizmeti. İstanbul: On İki Levha, 2010.
Saraç, Ayşen. İnşaat Sektöründe Elektronik İhale (e-ihale) Sistemleri ve Yapı Enformasyonu Modellemesi Entegrasyonu: Örnek Bir Çalışma. Yüksek Lisans Tezi, 2013.
Sigma Programı, 17 nolu Brifing: E-İhale. 2011.
FOOTNOTE
1 Yücel Oğurlu, İdare Hukukunda “E-Devlet” Dönüşümü Ve Dijitalleşen Kamu Hizmeti, (İstanbul: On İki Levha, 2010), 268.
2 Sigma Programı, 17 nolu Brifing: E-İhale (2011), 2.
3 Meltem Yıldırım İmamoğlu ve İzzet Gökhan Özbilgin, “Türkiye’de Elektronik Kamu İhale Sisteminde Kurumsal Yönetim Ve Birlikte Çalışabilirliğin Önemi,” Bilgi Ekonomisi ve Yönetimi Dergisi VII/I (2012), 26.
4 Oğurlu, İdare Hukukunda “E-Devlet” Dönüşümü Ve Dijitalleşen Kamu Hizmeti, 275.
5 Oğurlu, İdare Hukukunda “E-Devlet” Dönüşümü Ve Dijitalleşen Kamu Hizmeti, 275.
6 İmamoğlu ve Özbilgin, “Türkiye’de Elektronik Kamu İhale Sisteminde Kurumsal Yönetim Ve Birlikte Çalışabilirliğin Önemi,” 26.
7 Ayşen Saraç, İnşaat Sektöründe Elektronik İhale (e-ihale) Sistemleri ve Yapı Enformasyonu Modellemesi Entegrasyonu: Örnek Bir Çalışma.
