Persons who are found to have engaged in banned behaviour or actions regulated under Law No. 4734 and Law No. 4735 will be prohibited from participating in any tenders arranged by any administrative institution and organisation in Türkiye for from one year to two years, depending on the nature of their actions.
Those who are found to have engaged in banned behaviour or actions during or after a bidding process will be prohibited from participating in the relevant tender and other tenders that will be arranged by the same administration until a countrywide tender ban order enters into force.
A countrywide tender ban order is issued within the following 45 days after the determination of the banned action and such orders are published in the Official Gazette of Türkiye. The Public Procurement Authority (the “PPA”) tracks and records these orders.
Persons who have been prohibited from participating in tenders can be checked on the Electronic Public Procurements Platform (the EKAP (Elektronik Kamu Alımları Platformu) - Yasaklı Sorgulama (kik.gov.tr)).
The authorities responsible for prohibiting bidders from participating in tenders include the tenderer and contracting ministry, the tendering official if their relevant administration does not associate with any ministry, the Ministry of the Interior on behalf of provincial administrations and their relevant directorates, and the Ministry of the Environment on behalf of municipalities and their relevant directorates.
According to Law No. 4735, the awarded contract will be terminated by the relevant administration when the banned actions of a contractor are determined during the implementation of the contract. In such cases, performance guarantees and collateral guarantees related to the terminated awarded contract will be cashed out and registered as revenue by the administration.
If the banned actions of a contractor are determined after the execution of the contract, the same procedure applies. However, provided that 80% of the project has already been completed and the completion of the project is in the public benefit, if:
- there is insufficient time to carry out a new tender process for the remaining portion of work due to the urgency of the matter;
- it is unfeasible to have a different contractor carry out the contract; and
- the contractor has not engaged in actions or behaviour that would prevent the completion of its remaining obligations,
the administration may request that the contractor to complete the work and fulfil its obligations under the contract.
Contractors are liable to indemnify damages that the administration suffers because of the termination of the contract.
Banned actions or behaviours may also be criminally prosecuted under Article 235 of the Turkish Penal Code. Those facing criminal prosecution are banned from participating in tenders until a final court decision is issued.
Article 4 of the Competition Law, on the other hand, provides the basic principles of cartel regulations, which can also apply to bid rigging schemes. In the event of proven cartel activity, the Competition Board may impose penalties on companies of up to 10% of their Turkish turnover generated in the financial year preceding the date of the decision to fine them.
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