- 1. Have specific legislative or regulatory provisions been adopted by the Government in relation to the increase in the price of raw materials?
- 2. Does this situation give rise to amendments to existing public contracts?
- 3. Does this situation allow for the imprévision theory to be implemented?
- 4. Will delays or the failure to perform a public procurement contract in this context lead to sanctions being imposed on economic operators?
- 5. Do the relevant regulations contain anything about the execution of public contracts?
- 6. Are public contracts that are governed by private law mentioned in the relevant regulations?
jurisdiction
1. Have specific legislative or regulatory provisions been adopted by the Government in relation to the increase in the price of raw materials?
On 24 February 2022, the Implementation Principles (“Principles”) on the Provisional Article 5 (“Provisional Article”) of the Public Procurement Law No. 4735 (“Law”) were published by the Presidency of the Republic of Turkiye in the Official Gazette.
The Provisional Article provides contractors with two options for public contracts entered into in Turkish Lira prior to 1 December 2021, continuing or accepted or provisionally accepted through 22 January 2022 without having been terminated or settled prior to that date, and involving the purchase of goods and services and construction work: (i) receive a price adjustment for those parts of the contract performed between July 1, 2021 and December 31, 2021, including those dates; or (ii) assign the contract.
2. Does this situation give rise to amendments to existing public contracts?
The Provisional Article allows price adjustments to be granted when requested by the contractor. However, it does not automatically lead to contracts being amended.
3. Does this situation allow for the imprévision theory to be implemented?
The Provisional Article was authorized the President of the Republic of Turkiye in order to establish the principles and procedures for the implementation of (i) price adjustments in public tenders and (ii) the assignment of public tenders, paving the way for a solution to the global and national crisis caused by the increase in the prices of raw materials.
4. Will delays or the failure to perform a public procurement contract in this context lead to sanctions being imposed on economic operators?
Neither the Provisional Article nor the Principles regulate cases of delay or default. In such cases, the general principles of the Public Procurement Act and the applicable civil law provisions would be applied.
5. Do the relevant regulations contain anything about the execution of public contracts?
In addition to the additional price difference calculations, the Provisional Article and Principles pave the way for the assignment of public tender contracts. In order to assign the contract, contractors must submit a written application to the contracting authority within sixty (60) days from 24 February 2022. However, such an application does not terminate any of the contractor’s obligations. Until the completion of the assignment, the contractor remains liable to the contracting authority, while after the completion of the assignment, the new contractor becomes responsible for the performance of the remaining obligations.
6. Are public contracts that are governed by private law mentioned in the relevant regulations?
Not applicable.
