ABSTRACT
People can obtain goods and services from the relevant market through the person and/or institution that provide goods and services. In the course of time, the goods and/or services demanded by the individuals may differentiate and accordingly the type and the nature of such goods and services may change. In parallel with the needs of individuals, the needs and priorities of the institutions and organizations may change. In this respect, the present article identifies the problems in implementation in order to propose an amendment to the Public Procurement Law (“PPL”) numbered 4734 and dated January 4, 2002 and the Public Procurement Contracts Law (“PPCL”) venumbered 4735 and dated January 5, 2002 that both entered into force as of January 1, 2003, and within the framework of these issues, amendments that should be made in public procurement legislation are revealed.
I. INTRODUCTION
PARALLEL TO THE NEEDS OF INDIVIDUALS, THE NEEDS and priorities of institutions and organizations can change over time. Likewise, the needs and priorities of public institutions and organizations can change as well. Public institutions and organizations, unlike individuals, provide their needs within the scope of certain rules. Yet, the public institutions and organizations are obliged to comply with the rules and regulations in order to use or benefit the public poverty. Accordingly, public procurement is carried out in accordance with the public procurement legislation and by that it is regulated that public funding will be used efficiently and correctly. Furthermore, as mentioned above, the relevant rules and procedures must also have a flexible and dynamic structure within the framework of changing needs and priorities. For these reasons, it is essential that public procurement legislation is prepared carefully and in accordance with the changing conditions.
Public procurement legislation is the determinant of the commercial relations between the public and private sectors. The Turkish public procurement system and relevant legislation, while responding to changing and dynamic requirements, should be in compliance not only with the internal dynamics but also with the economic, social and political conditions that develop at the world scale. In this regard, it is of utmost importance that the Turkish public procurement system is in compliance with the rules applied and adopted by international organizations and institutions such as the European Union, the World Trade Organization and the World Bank.
Today, as a result of the globalization movements in the world and due to the international capital flow to Turkey and the efforts of our country to become a full member of the European Union, various changes in the legal field are being made and adjustment laws are being enacted. In accordance with the "Accession Part-nership" promulgated by EU Commission following our announcement as a member state, in the frame of a projection of accomplishing the conformity of legis-lation in the medium term regarding public procure-ment stated in "Turkish National Agenda Related to Undertaking Body of Knowledge of EU" which includes alteration and innovation that is going to be made hav-ing purpose of conformity to the body of knowledge of EU, having EU standards and principles of UNCITRAL (United Nations Commission on International Trade Law) Model Code of Public Procurements as basis; PPL and PPCL which is stated to have brought revolutionary alterations, are legislated in order to establish an inde-pendent institution that will guide the implementation and provide the inspection in the field of public procurement, to be completely applicable to prevent waste in public funding and to establish efficient usage of public funding principle and to provide competition and equal treatment principle, and to build an efficient, transpar-ent and reliable public procurement system.
The duty of preparing the regulations and the communiqués defined as secondary legislation for the ap-plication of the laws, is given to the PPL and the Public Procurement Authority. As the application regulations of the PPL and PPCL; Application Regulation on Procurement of Works, Application Regulation on Procurement of Goods, Application Regulation on Procurement of Service, Application Regulation on Procurement of Consultancy Service ("Application Regulation") and the Regulation on Administrative Applications to be Taken Against Procurements have been concluded and entered into force.
In this article, firstly, in the scope of public procurement legislation, problems arising in practice, particularly conflicts on the decisions of the higher judiciary insti-tutions such as Constitutional Court, Council of State, Supreme Court of Appeals and Court of Accounts and Public Procurement Board are determined and follow-ing that, proposals for the solutions regarding the issues in practice and regulation are introduced.
II. THE HISTORY AND GENERAL FRAMEWORK OF TURKISH PUBLIC PROCUREMENT SYSTEM
In Turkey, the history of the including the public pro-curement in the scope of law, dates back to the early years of the republic. For the first time, the Law num-bered 661 and dated 22.04.1925 has regulated general rules of purchase of goods and services to be purchased by the government. Afterwards, Auction and Tender Act numbered 2490 and State Procurement Law numbered 2886 and dated 8 September 1983 ("SPL") were the ba-sic legal texts in practice up to the years of 2000.
Until 2003, public expenditures and public revenue-generating transactions such as sale, leasing, and ex-change were performed according to SPL. However, since the SPL were inefficient for the procurement of works and goods, it could not keep up with current con-ditions and the international system and it remained incapable in terms of economic and social requirements and therefore, the PPL, which regulates the public pro-curement, has been formed. Likewise, the PPCL was legislated by needing a separate code for the contracts to be established between the administration and contractor as a result of the tender.
The SPL has undergone some changes with the Law numbered 2990. The basis of all these laws, is the fulfill ment of the government needs at the most proper conditions and suitable time bearing in mind that the principle of clarity and competition1. The PPL regulates the principles and procedures to be applied in the procurement of all goods and services and works that contract-ing public institutions and organizations are subject to the public law or under the control of the public or using public sources, and determines the principles and pro-cedures for the regulation and implementation of the contracts for tenders made in accordance with the PPL and PPCL. The works related to the public revenues are also carried out according to the SPL.
The PPL, currently in practice, accepted in 2002 and has entered into force in 2003. As of the date of this article is being written, the PPL has a fifteen year history of implementation. Economically, the PPL, which regulates the transactions at a level of more than 20 percent of the total public expenditures and approximately 7 percent of gross domestic product, faces a number of changes in its fifteenth year2. In this context, some of the issues needed to be amended in the PPL are given below.
III. CONCEPTUAL EXPLANATIONS ON PUBLIC PROCUREMENT LEGISLATION AND PROCESS
The tender is, in dictionary meaning, defined as granting, decreasing or increasing the works, goods or etc. to the acceptor among many tenderers, with the most appropriate conditions3. By definition, it is not compulsory that the procurement process must have a public nature or, more technically, must be an administrative act. A public procurement is mentioned in case of the person who makes the procurement transaction uses public power and the contract to be signed as a result of this transaction is allocated to the public service at a certain level.
From a theoretical point of view, publicly purchased transactions consists of many actions, operations and processes. This process is summarized in the following diagram;
Necessity➡Average Cost Fixation➡ Tender Notice➡Receiving Offers➡Evaluation of Offers➡Signing The Contract ➡Delivery➡Payment➡
As it can be understood from the diagram, the process starts with the needs assessment. The answer to the questions of how many and what kind of good, service or work is needed, is sought. Then, the estimated cost of the need is calculated. The tender is then announced to the parties. Request for tenders are collected, assessed and each procurement process is linked to a contract. In the contract process, the contractor is obliged to deliver the business, whereas the administrative is obliged to pay the contract price. The process ends when these responsibilities are completed.
In Turkey, there are more than one legislative acts that deal with tendering procedures in which public administrations are parties. These regulations mainly regulate three types of procurement procedures, namely, thetender process that the public has spent money on, the tenders process that yields money to the public and the tender process regarding the public borrowings.
The procurement transactions made by the public au thority means that public services are provided to thir parties as a result of the use of public funds, in cash or in kind4. This is the main area that is described as "public procurement" in the international literature as well considering the economic and financial effects. The Law on Assignment of the Institutions Except Turk ish Electricity Company Regarding Power Generation Transmission and Distribution numbered 3096 ane dated 4/12/1984, the Law on Assignment of the Institu tions Regarding Highway Construction, Maintenanc and Operation Except General Directorate of Highway numbered 3465 and dated 28/5/1988, the Law Regard ing the Realization of Certain Infrastructure and Publi Services with the BuildOperateTransfer Model num. bered 3996 and dated 8/6/1994, the Law on the Estab lisment and Operation of Electricity Generatipn Plans and Energy Sales under the BuiltOperate Model dated16/7/1997 and numbered 4283, and PPL numbered 4734 and dated 22/1/2002 are concerned with such tender procedures.
Even if the acquisitive and promissory transactions are carried out under the name of the tender, these transac-tions are not regarded as "public procurement". There-fore, they do not subject to "public procurement law".
The procurement transactions made by the public au-thority can be examined in two different headings, de-pending on the nature of the public resource used and the manner in which it is awarded. The first one is the fixed price tenders that is allocated to the administra-tion which is made for the expenditure of the capital budget. In this case, the contracting authority signs the contract and then pays the fee. The second type can be described as variable pricing tenders. In such tenders, the contractor compensates his performance from the beneficiaries of the public service produced. Under certain guarantee figures, however, payments are made from the public budget. In Turkey, the former is carried out in accordance with the PPL whereas the latter is carried out according to the legal legislation regarding the public-private partnerships5.
It should not be understood as one type of administrative action from the public procurement wording, in the light of the foregoing explanations. Projects carried out under the public private partnerships can also be considered as tender. However, they do not have a consolidated legal arrangement that is similar to PPL.
As explained in the first chapter, this article mentions the public procurement legislation and its related legal regime. The aforementioned laws are the fundamental legal texts on public procurement, which have been in force for fifteen years in Turkey.
The PPL, which was adopted in 2002 and entered into force on January 1, 2003, consists of 97 articles, 9 of which are appendix and are temporary. The basic regulation areas consists of general provisions, tender process, dispute resolution and prohibition processes. More than 60 amendments have been made in this law, until 2003. However, the most important amendments were made in the Laws numbered 4964, 5812 and 6518 in years 2003, 2008 and 2014 respectively. Subjects such as scope, exceptions, definitions, approximate cost, tender procedures, guarantee, prohibition, etc have been amended by the Law numbered 4964.; electronic bidding, sufficiency, extremely low offers, complaints have been amended by the Law numbered 5812 and extremely low offers, domestic tenderers and application fees have been amended by the Law numbered 6518.
PPCL was also adopted in 2002 and entered into force on 1 January 2003. The law consists of five parts and 41 articles. The basic regulation areas of the law are contractualisation, contract administration, price differences, terms of termination, force majeure, prohibitions and obligations. Even though PPCL does not change as frequently as the PPL, legal arrangements have been made after 2003 on various issues related to the implementation of the contract, particularly on price difference.
There is sizeable amount of secondary legislation relating to the PPL and PPCL. These are the Decisions of the Council of Ministers regarding the price differences, theApplication Regulations, the application directive for tenders, the Public Procurement General Communiqué, the standard forms, standard specifications and contracts. These regulations also have a considerable impact on the implementation of the public procurement.
IV. IDENTİFİ CATİON OF THE PROBLEMS İN PUBLİC PROCUREMENT LEGİ SLATİON AND PUBLİC PROCUREMENT PROCESS
In consideration of the explanations made in the previous chapters, the identified problem areas classified in two headings, as a result of examining the opinions set forth in the scientific and professional publications and activities about the implementation, particularly the disputes on the decisions of the Public Procurement Board and higher judicial bodies such as the Constitutional Court, Council of State, Supreme Court of Appeals and the Court of Accounts. The former are the issues arising from the legal arrangements and the latter are the issues arising from the lack of administrative capacity and market failures.
A. Issues Arising From the Legal Arrangements
The determinations regarding the major areas in whichdisputes arise or in which inefficiency is observed in the execution of the tender and the contractual period, in the period of fifteen years in which the legislation has been in force, are dealt with under this title.
1. Incompatibility with International Tender Legislation and Practices
In the 2000s, general situation of the public procurement legislation in Turkey, is intended to comply with the global regulations, particularly including the European Union. For that purpose, in the same years, most of the changes in the PPL have been made in order to comply with the international legislation. However, since the significant deviations from that aim have observed, especially in the last five or six years, there have been criticisms in the progress reports prepared by the European Union.
The European Union revised its directives on public procurement procedures in 2014 and the amendments entered into force in 2016. In this regard, it has also been included in the government program, which requires full-compatible updating of the PPL to the European Union legislation7. However, although no updates have been made by the end of 2017, some censurable amendments have been observed.
Many of the problems arising from the legal arrangements of the PPL are incompatible with international legislation. For instance, the matters to be elaborated below in the titles such as the scope of the PPL and the use of the procurement procedures, also concern this title. Albeit, the absence of sustainability policy in the PPL except for the relevant issues, the differences in the detection/ evulation of the extremely low offers, the lack of tendering procedures such as innovative negotiation in national legislation, the incompability of the structure of the Public Procurement Authority with the corporate governance principles, the extent of the direct supply field and the differences of the competency rules are the issues that can be evaluated in this title. Offers have been made to resolve the aforementioned problems in the Draft Law on the Amendment to the PPL.
2. Expansion of Purchase Areas Exempt from Law
Exceptions, which were held only in six sub-paragraphs and were not included in other laws when first adopted in 2002, have reached twenty sub-paragraphs in the PPL by the end of 2017. On the other hand, although it is regulated in the article 66 of the PPL that amendments on the provisions of the PPL can only be made by adding or changing the provision of the PPL, the exceptions in other laws have increased as well since the above-cited rule does not have not a constitutional force. As is, the PPL is far from claiming to be a general text regulating the public procurement and significant differences can be seen between the PPL and the directive, by comparing the directives of the European Union public procurement with the PPL.
3. Misuse of Tendering Procedures
The limited number of tender procedures is set out under the article 18 of the PPL, and in the article 5 of the PPL it is stated that open procedure and tender procedures between certain tenderers are the main procedures. The third procedure which is named as negotiated procedure, therefore, is considered as an exception and by force of general principles of law, exceptions should be narrowly interpreted. So indeed, the cost of the work to be done in the negotiated procedure is increasing considerably. For instance, according to public procurement statistics published by the Public Procurement Authority in 2016, while the ratio of contracts to average cost is approximately 73% for the open procedure, the ratio for the negotiated procedure increases to the 87%.8 It is therefore necessary to discipline the use of tender procedures, particularly the negotiated procedure.
To conclude, it is essential to remove the regulations that increase the judicial discretion in the tender procedure which should be used in specified operations among the tenderers by virtue of international regulations and to make legal justification obligatory on negotiated procedure. In respect thereof, proposal for amendment to the PPL has been made in the Draft Law on the Amendment to the PPL.
4. Granting Authorities Exceeding Private Law Contract Rules to the Administration
Contracts signed at the end of the public tender process are defined as “private legal contracts of the administration” in the administrative law9. As stated in the last paragraph of the article 4 of PPCL “Parties to the public contracts executed under this Law have equal rights and obligations in the implementation of contract provisions. Bidding documents and provisions of the contract shall not contain any item contrary to this principle. This principle is taken into account in the interpretation and application of the law.”
Although both theoretical and fundamental arrangementsare in this direction, the PPL and PPCL have provisions otherwise. For instance; the failure to issue an interim injunction about warranties, the uncertainty at the beginning of the period for restraining order, the absence of the regulation about the exceeding workload on the contractors and the lack of arrangements for late payments by the administrations are the problems here of. Because of that, an offer has been submitted in order to make the practice more equalitarian in the Draft Law on the Amendment to the PPL.
5. Problems Occurred by Audit and Judicial Proceedings
The PPL has significantly expanded the awareness on this issue by means of a dispute settlement called complaint and specific to the public tender. There are some disruptions in this method, which is a compulsory application that must be exhausted before the application to the administrative jurisdiction. For instance, taking the cancellation order of the tender, which is important at least as much as the contract decision, into to the scope of complaint without any strings attached and the adaption of the application deadlines are included in scope. In addition to administrative supervision, prolonged judicial review processes also pose problems, particularly in terms of contractual practices. The annulment decisions, granted in the cases that opened against the decisions of the Public Procurement Board, resulted in the change of the contractor of the contract which has already started, create problems for both the administration and the contractors. For the settlement of the questions, it is offered that in some tenders over certain values, judicial system should be transformed to a one stage system, actions regarding the decisions of the Public Procurement Authority should be filed directly against the Council of State and the contract should not be signed until the decision of the Council Of Stateis held. Changes in this direction have also been offered in the Draft Law. On the other hand, establishing regulations for the termination of the contracts and the continuation of the first contract under the conditions provided by the Law have been proposed.
B. Problems Caused by the Lack of Administrative Capacity and Problems Caused by Market Players
Besides the problems caused by legal regulations, there exist other problems caused by persons and institutions involved in the public procurements process. Although it is not possible to solve these problems by making amendments, it is required to mention these for the sake of having an integrative point of view.
1. Lack of Professional Procurement Profession in Public Organs
Procurement operations are being handled mostly by individuals other than professional procurement experts. There is no yield neither money-wise nor career-wise of being assigned in procurement and contract periods, too. Moreover, there happens to be administrative, financial and criminal liabilities of the job that has been done. For this, no matter how good legal regulations are, because of the personnels assigned in the related phases aim to finish the job that they have in their hands rather than producing effective and productive procurement solution methods, problems take place in implementation experiences.
Examples to practice reflections of these problems under this heading can be shown as unrealistic cost accounts, finalizing procurements for the lowest price instead of non-price factors and excessive usage of simplifying methods. These examples affect not only procurement process but also contract process.
2. Not Making Contract Supervisions According to Laws
One of the main elements of a healthy procurement and contract process is parties being in full information state. More explicitly, it means, preparing procurement and contract documents clearly and executing them precisely in practice. However, not making contract supervisions by the book, damages the equal treatment between ones who are aware of this deficiency and those who are not. When it merges with the ethical problems of related market, problems in procurement process bound to occur.
3. Preparing Proposals Based on Deficient Knowledge
Foregoing explanations are also valid for applicants. Notstudying the procurement and contract documents well enough, and focusing only on the winning proposal of the procurement both cause notable problems in contract execution. Because of this, lots of contracts are being terminated and contractors are being imposed sanction.
V. Solution Proposals Related to the Problems in Public Procurement Legislation
1. Adjusting the Exceptions in Public Procurement Law to Objective Criterias
PPL, which has had a character of legal text that includes all public procurements according to the rule, regulated as six paragraphs at the time PPL entered into force and regulated in article no.68 paragraph (b) of Public Procurement Law, “Provisions of the other Codes giving exemptions from 8.9.1983 dated and 2886 numbered State Procurement Law and provisions that are not suited to this Code shall not apply.” has lost this characteristic during years it applied.
In the frame of foregoing explanations, exemption regulation must be done by changing the article no.3 of PPL, in accordance with the international procurement legislation. Relevant provision of article should be rewritten in accordance with mainly European Union directive numbered 2014/24/EC and in this frame, procurements that must be done within PPL should be exluded from being exemption.
2. Ratifying Sustainability Principle Which is one of the Basic Principles of the PPL
Article related to sustainability is added to article of basic principles (article 5) regulated firstly in 2002, similarly to international procurement practices. Sustainable public procurement term mainly consists of three basic topics. First of these is economy. This term means getting the return of the money spent for the expense made. Second term is social procurement. With this term, the practices of social procurements that plays a supportive role in areas such as disadvantages groups, disabled ones, KOBI policies, is meant. Last topic of sustainable public procurements is environmentalism. In procurements to be made, taking cost of cycle of life into consideration, guarding environmental factors are aimed. With a regulation in article, sustainability must be regulated as a basic principle within the scope of PPL.
3. Adjusting the Threshold Levels in Public Procurement
Legislation to EU Standards At the top of the most criticised topics in the frame of Turkey-EU membership negotiations comes the highness of the threshold levels in PPL. Threshold levels should be re-regulated in accordance with European Union directive numbered 2014/24/EC in order to eliminate this criticism.
4. Adjusting the Certificate of Completion and so forth Documents that are Valid in Public Procurements to International Standards
Work experience certificate in common practices of member nations and organizations that makes regulations regulations related to international procurement legislation such as EU, UNCITRAL and WTO consists of the contracts that the applicants fulfilled perfectly in procurement actions and so forth actions. Thus, documents obtained from inspecting works and managing works in construction works, are only being used in actions like controling, surveying, planning.
Considering the present state of the related market, work inspection and work management documents that are regulated to contribute to development of contractor sector in Turkey seems to have fulfilled its mission. Having this purpose, with a regulation on the article 10 of PPL with the heading “Competence rules for participation in trial”, the application of the documents other than certificate of completion should be terminated correspondingly to international applications.
5. Regulating the Relation between Applicants and Sub Contractor in Public Procurements
In public procurement practices, sub-contractship substantially means certain parts of work that requires expertise are handled by third persons who possess that expertise. However, when implementation experiences are observed, it can be determined that having no boundary in the works that are to be made by sub-contractors gives results that are against the general rule saying contractor’s liability is principal.
Pursuant to foregoing explanations, based on the idea saying secondary fields of the work that requires expertise shall not exceed half of the total contract price, boundary regulations about work loads that will be assigned to the sub contractors must be made.
6. Adjusting Procurement Procedures to EU Standards
When the regulations in EU directives about procedures of being put out to tender are examined, it is seen that there is an emphasis put on procurement procedures between certain applicants, features of the work require expertise and/or cutting-edge technology. In this frame, article 20 of PPL expands the application of procedure which leads to contradictory results of administrating procedures to the principles of competition and deployment of resources. For this, regulation that authorises administrations with power of discretion must be excluded from the relevant article text.
7. Regulating Negotiated Tendering
There are regulations in PPL about negotiated tendering that can be done without a notice. According to present public procurement statistics in Turkey, works that are done without a notice concludes with 10-15% higher contract prices. Thus, in order to bring expenses on this field under control, justification of application of procedure should be regulated as a provision of law.
Besides the justification rule, because of being regulated as direct supply in present application, it is regulated that some types of procurement that are not confirmed as a procurement essentially can be done by negotiation without a notice. Therefore, related types of procurements must be excluded from Article no.22 of PPL related to direct supply.
8. Making the Procurements Done by Direct Supply Method Exceptions
As direct supply method is not a procurement essentially, in order to make this method to be used only in low volume works of which the costs are under specific values, some types of procurements are regulated as negotation without notice. Procurements that do not need to be supplied directly should be excluded from the article text in PPL in order to be made by procurement.
9. Making Adjustments Related to Letters of Guarantee
Interim injunction term that is regulated in part ten of Code of Civil Procedure dated 12/1/2011 numbered 6100 as a temporary legal protection, in article no.389 of related code, is stated as a temporary protection order about matter of disputes in cases such as obtaining the right becomes difficult to a considerable extent because of a change that can happen in the present situation, or becomes impossible completely, or because of a delay or in any doubt that consists of any damage to be borne.
Whereas in public procurements, from time to time, disputes about recording guarantees as an income between administration and contractor or applicants take place, appeals of dispute resolutions to be made by jurisdiction do not pull up the operation of recording the guarantees as incomes ex officio. Although a motion for stay of execution about the topic can be granted by administrative jurisdiction, not being able to give temporary injunction in civil justice poses an obstacle before the right to legal remedies of those concerned. For this reason, with an adjustment to be made in article, granting a motion for stay of execution on guarantees must be regulated as temporary right to legal remedies.
10. Adapting EU Standards Related to Excessive Underbid Prices
Excessive underbid prices are one of the headings that most generates disputes and practical difficulty during the time of application of PPL. Although tendency to excessive underbid prices are not only related to procurement process, present state of the article differs from international procurement implementations both in explanation and evaluating methods of excessive underbid prices.
Within the frame of foregoing explanations, new criterias that are taken as a reference to determine the excessive underbid prices should be brought by making changes in PPL, public aids clause must be added to explanation methods of excessive underbid prices, and the provision about accepting the low-priced proposal for procurement without making this inspection or directly declining the proposals below the limit value must be repealed. Moreover, it must be ensured under provision that applicants do not need to explain by making regulations in indemnity insurances in PPL in the case where failures of contracts are securitized.
11. Regulating the Structure of Public Procurement Authority
Public Procurement Committee, deciding organ of Public Procurement Authority, directly affects lots of sectors both public and private and market structures with decisions that are both regulatory and supervisory. Because of this, a structure having these kind of effects must be structured more appropriately to the principles of public governance, emphasis on objectivity and autonomy of the structure must be strengthened.
Within the frame of foregoing explanations, by changing related legislation, suggesting members related to formation of the committee by several ministries, Authority itself and private sector must be regulated. Moreover, regulation stating members of the committee can only be elected once, must be made in order to enable members work without pressure of election.
12. Regulating the Complaint and Appeal Mechanism
In procurements that are done in accordance with PPL, although the procurement process concludes with signing the contract as a rule, in several articles, administration is given the opportunity to terminate the procurement constituted as dependent power or power of discretion. Especially in cases where it is constituted as power of discretion, it is an important necessity of administration to make legal justification. In present case compliance with law of the cancellation process is not a subject of appeal complaint as a rule, but in the case cancellation decision is taken based on a request, inspection can be made.
This distinction in present regulation is evaluated as less meaningful in the frame of right to legal remedies of persons and legal purposes of administrative requests towards procurements, opportunity to appeal to Public Procurement Authority must be given against the cancellation operations of procurement.
13. Making Procurement Process Urgent
One of the most important problems faced while applying the public procurements and procurement contracts is the suspension of execution or execution of cancellation decisions given by the judicial authorities, against the decisions given by PP Committee. Especially in procurements of construction works, after a certain process of contract, changing the contractor can result in legal and technical problems; and also delays take place in public investments.
With the change in PPL in order to solve the foregoing problem, it will be suitable to regulate not signing the contract before final decision of the judgement of coun cil of state, with a single degree judgement, for the procurements of construction works that has an approximate cost more than twice the threshold levels.
14. Adjusting Localness in Public Procurements to EU Regulations
One of the topics criticised in the frame of Turkey-EU membership negotiations between Turkey and EU is, nation-based discrimination provision that is in Turkish public procurement legislation. Although it is not desired in the frame of global procurement rules, it should be regulated as the relevant article is executed before a year from the date of Turkey’s full membership and relevant article cease to have effect by its own at that date.
15. Expanding the Opportunity of Negotiate During Procurement Process between Administration and Applicants
One of the most important changes made by directive numbered 2014/24/EC, is that not only for the needs that were determined before but also to develop new procurement methods that they can determine the content of the needs by negotiating with the market players. This new negotiating method given for this purpose by the directive, should be in national legislation by being added into PPL. With this method, advanced tech and/ or high value added good, service or construction work is binded to the contract by the terms that become definite after the negotiation that is being held during the procurement process.
16. Giving the Opportunity to Determine Procurement Proposal Prices While Considering Different Criterias
PPCL regulates five different types of contracts mainly at the moment. The ones that are used in purchase of goods and services, are lump sum price contract and unit price contracts that includes total cost. But in practice, after privatizations especially in services such as energy and telecomunications, administrations start to buy these goods and services by means of procurement. Present types of contracts of PPL make it obligatory for applicants to propose total contract price that is consisted of unit prices.
A type of contract that will provide applicants to propose in different price category at a constant period of time,for the procurements like electricty, internet, phone should be regulated by the change in PPCL. With this, it must be provided that de facto application in the market gains legal support for public procurements.
17. Equal Treatment to the Parties in Public Procurement Contracts
In the must-be terms of Public Procurement Contracts, although having a regulation related to a delay in the liabilities of contractor, there is no such regulation related to the action that is going to be taken if there is any delay on payment which is the basic liability of the other party of the contract, administration. As this case is in no confomity with the principle saying parties of public contract under PPCL that is in article 4 of PPCL have the same right and obligations in implementing the contract, regulation related to the liability of the administration must be made in related article.
18. Regulating the Procurement Price Meets the Original Cost in Public Procurement
In the process of executing the Public Procurement Contract consisting of construction work, in some cases, when the final account of the works done by the contractor is calculated, it can be determined that factual circumstances are more than 120% of the contract price. However, since the work increase rate is limited with 20% in article 24 of PPCL, this may be a matter of dispute between administration and contractors.
For this, provision saying the exact charges related to works done more, should be paid similarly to acting without authority provisions based in Turkish Code of Obligations must be added to PPCL. Besides, as in the case where this happens because of the administration’s approval or refusal, the terms of contract of mandate will be valid, it should be regulated to be paid including the prices on the contract.
19. Compensating the Damage Caused by Exceeded Public Procurement Process
Public Procurement Committee suspension of execution or execution of cancellation decisions given by the judicial authorities, can result in legal and technical problems. Because of that, during the implementation of the contract, both executing effectively of admin istrative judicial decision by the request of plaintiff and contract being executed, it is regulated that Public Procurement Contract may not be terminated under certain circumtances in order to execute the public service that is seen without any interruption. These terms are, progress in a duly signed contract being at a certain point and the written approval of the plaintiff. On the other hand, in the case where this happens, in order to preserve the rights of the plaintiff that does not sign the contract, it is ensured that compensation consisting of expenditures made in order to enter to the procurement and 10% of the proposal price will be paid.
VI. CONCLUSION
In this article, problems related to public procurement legislation are mentioned and by explaining the change in public procurement legislation with the historical de development in Turkish public procurement system, the problems and their solution in the process of public procurement in today’s world examined. In order to make Turkish public procurement system comply with the rules that international structure and institutions follow and adopt and at the same time, since the related rules and procedures have a dynamic and changeable structure, it is vital to prepare a legislation compatible with the changing conditions. In this contact, we firmly believe that the above-mentioned issues may be solved by amending the present legislation and making the present legislation in conformity with the international public legislation. In this article, various solution offers in order to synchronize these legislations have been made and it is aimed to solve the problems encountered in public procurement and contracting process.
BIBLIOGRAPHY
Ali Kemal Akkoç, “Elektronik İhale Süreci ve Gelinen Son Nokta”, İnşaat Sanayi Dergisi, Ankara 2013.
Eren Toprak, “Kamu İhaleleri; Kamu Alımlarının Hukuki Yönetsel ve Siyasal Boyutu”, Ankara 2016.
Ramazan Çağlayan, İdare Hukuku Dersleri, Ankara 2017.
Sami Kaplan, “İdeal Bir Kamu İhale Kanunu ve İdeal Bir Kamu İhale Kurumu ve Kurulu Nasıl Olmalıdır? Fonksiyonel Bir Model Çalışması”, Maliye Dergisi, Ankara 2012.
FOOTNOTE
1 Ali Kemal Akkoç, Elektronik İhale Süreci ve Gelinen Son Nokta, İnşaat Sanayi Dergisi, Ankara 2013, p. 16.
2 Eren Toprak, Kamu İhaleleri; Kamu Alımlarının Hukuki Yönetsel ve Siyasal Boyutu, Ankara 2016, p. 110.
3 http://tdk.gov.tr/index.php?option=com_ gts&arama=gts&guid=TDK. GTS.595b861b3e6185.54205896 (Last Access: 15.03.2018).
4 Sami Kaplan, “İdeal Bir Kamu İhale Kanunu ve İdeal Bir Kamu İhale Kurumu ve Kurulu Nasıl Olmalıdır? Fonksiyonel Bir Model Çalışması”, Maliye Dergisi, Ankara 2012, p.24.
5 Toprak, p.111.
6 https://www.ab.gov.tr/46224.html (Last Access: 15.03.2018) .
7 http://reformlar.gov.tr/ui/pdf/2016-hukumet-eylemplani.pdf. (141 numaralı eylem) (Last Access: 15.03.2018).
8 http://dosyalar.kik.gov.tr/genel/Raporlar/kamu_ alimlari_izleme_rapor_2016_y%C4%B1lsonu.pdf, s.14 (Last Access: 15.03.2018).
9 Ramazan Çağlayan, İdare Hukuku Dersleri, Ankara 2017, p. 451.
