Public procurement regulation in Turkey

August 2021

• All tender notifications and related tender documents are accessible online through the Electronic Public Procurement Platform (“EPPP”), the centralised public e-procurement platform operated by the Turkish Public Procurement Authority, https://ekap.kik.gov.tr/EKAP/Ortak/IhaleArama/index.html (tender search engine), which can be found at the Public Procurement Authority (“PPA”) web site http://www.ihale.gov.tr/.
• Public Procurement Bulletin (“PPB”) (and its archive) is available online at: https://ekap.kik.gov.tr/EKAP/Ilan/BultenIndirme.aspx (bulletin search engine). The Bulletin is issued daily. Depending on the issue, it provides information on pre-announcement, publication, correction or cancellation of a tender. Awarded tenders, within a brief summary are listed in the PPB, as well. Apart from this compulsory content, if requested by the relevant contracting authority, announcements, corrections, termination and information about winning bidders are also available in the PPB, in regard to tenders (a) launched by the administrations, which are not in the scope of the Public Procurement Law (“PPL”); (b) launched by the administration, which lie in the scope of the PPL but procuring in respect of the “exceptions” stipulated under the PPL or procurements of administrations that do not fall under the tender scope of the PPL; or (c) launched by private legal entities that are established by a special law or by way of a by-laws rendered by the Council of Ministers.
• Alternatively, notifications can be obtained in hardcopy from the contracting authority. The contracting authorities also publish tender notices on their websites.
• The tender search engine and the bulletin search engine are only available in Turkish. Under the PPA’s web page, general announcements (i.e. press releases, legislative amendments etc.), related legislation, statistics and information relating to the administrative authority are available in English.

• Turkiye is not yet a member state and not subject to EU directives, but due to its participation in the pre-accession phase, a similar threshold mechanism to that provided under the EU Directives has been designed and amended for supply, service and work contracts and are covered by the PPL.
• The different thresholds are stipulated based on the type of procurement and legal structure of the authorities. In principle, the thresholds are determined to (i) specify the notification periods and (ii) support local bidders with the fee advantage, if any, and restrict foreign bidders from participating in a tender.
• In connection with the above, the contracting authority, at its discretion, may only restrict the “participation” of foreign (non-domestic) bidders if the estimated cost of the tender is below the referenced thresholds.
• The thresholds are applied in accordance with the estimated costs.
• Estimated Costs: The contracting authority must conduct all necessary price research and must determine an estimated cost, excluding value added tax. Estimated costs must not be stated in tender or prequalification advertisements, and must not be explained to tenderers or to others who do not have any formal relationship with the tender proceedings.
• The contracting authority provides bidders with a notice period to prepare for the submission of their tenders. The notice periods and the relevant data for publication differs depending on the estimated costs of the contract.

* calculated according to the exchange rate of the Central Bank of the Republic of Turkiye on 5 August 2021 (1 EUR= 10.11 TRY)

• The notice periods are determined in accordance with the thresholds and the tender procedures and types. The chart, indicating the related notice periods for the contracting authorities follows:

• The (*) forty-day (40) period will be shortened by: (i) seven (7) days if the announcement is prepared and send electronically, and additionally by (ii) five (5) days if the announcement is duly obtained from the EPPP; which limits the forty-day (40) period to twenty eight (28) days in total. 
• (**) An invitation letter must be sent to the pre-qualified tenderers forty (40) days prior to the date of the tender. This forty-day (40) period will be shortened by five (5) days if pre-qualification documents are duly obtained by the tenderers from the EPPP.

• Under the PPL, there are three (3) procedures applicable to the tenders. These are open, restricted and negotiated procedures. In principle, the open procedure is applied to all public tenders.
• Restricted procedure: Only the persons who are invited following pre-qualification by the contracting authority can submit their tenders.
• Negotiated procedure: Exceptional procedure with or without a publication of a tender. In addition to the chart below, it is only applied under certain conditions. In particular, if no bid is submitted under open or restricted tender procedures, negotiated procedure applies to the works, goods or services to be procured. Prices can be negotiated following the submission of price offers.

• Contracting authorities will apply the negotiated procedure, subject to certain publication requirements of a tender
  • With prior publication:
    • If no bid is submitted under the open or restricted procedure tenders;
    • If research and development (R&D) is necessary and the tender scope is not subject to mass production;
    • If prior overall technical and financial analysis is not possible under supply, service and work contracts due to its complex nature.
  • Without prior publication:
    • If procurement must be carried out with extreme urgency due to events that the contracting authorities could not have foreseen and which can in no way be attributed to them; or if procurement concerns national defence, security or intelligence;
    • If the estimated cost for the product, good, supply and service procurements are up to TRY 404,732 (Approx. EUR 38,697)

• In addition to the above procedures, the contracting authorities may organize a “design contest”, apply “special procedure for procurement of consultancy services” and without a publication procedure and a security condition, procure a “direct purchase”, provided that the certain conditions are fulfilled.
• It should be noted that, direct (purchase) procurement is not typical procurement procedure, but it is a procurement method that allows contracting authorities to procure its requirements, when their cost falls under the following thresholds:

*calculated according to the exchange rate of the Central Bank of the Republic of Turkiye on 5 August 2021 (1 EUR= 10.11 TRY)

• Please note that as of the date of this guide, 30 out of 81 cities in Turkiye are governed by metropolitan municipalities. The respective thresholds are subject to a slight increase each year in accordance with the communiqué published each year based on the data provided by Turkish Statistic Institution.
• Moreover, to comply with the EU directives framework agreement, dynamic purchase, electronic auction and electronic notification concepts are applied under the PPL, as well.

• Briefly the appeal under PPL is a “complaint (to the contracting authority)” and an “objection (to the PPA)” mechanisms. The candidate/participant must submit a complaint petition based accordingly on the reply or non-reply of the contracting authority within a certain period; an objection application should be filed to the PPA.
• In order to be eligible to file an administrative lawsuit relating to the tender or in connection with the contract, this appeal phase must be exhausted.
• Any procedure or action of the contracting authority under the procurement process can be appealed by the candidates, tenderers or potential tenderers who claim that they have suffered a loss of right or damage or likely to suffer a loss of right or damage due to unlawful procedures or actions.

• The Complaint: The time limit for appeal is five (5) days for tenders that are procured (i) under extremely urgent and unforeseeable conditions (i.e. disaster, disease etc.) or (ii) with concern for national defence, security and intelligence matters. Other than these two types of tender, the limit for appeal is ten (10) days for all tenders, starting on the date the unlawful procedure or action of the contracting authority is realized or must have been realized by the applicant.
• Complaints regarding the procurement notice may be lodged from the date the notice is first published, while the period for applications regarding the other provisions of prequalification or tender documents that are not reflected in the procurement notice starts from the purchasing date of the related document.
• Complaints regarding the procurement notice, prequalification or tender documents must be submitted three (3) days before the date of the tender or application deadline at the latest provided that the deadline does not exceed the time limits stated above (in the first paragraph).
• The Objection: Upon completion of the complaint phase, the applicant may challenge the contracting authority’s decision within five (5) days before the PPA.
• Further appeals (initiating an administrative lawsuit and related judicial proceedings) are precluded after the abovementioned limits expire.

• There is a standstill period of:
  • No less than five (5) days from the day on which the information on the selection of the winning bidder was sent, provided that the procurement is completed in a short span of time due to the extremely urgent and unforeseeable conditions or national security matters are at stake; and
  • No less than ten (10) days from the day which the information on the selection of the winning bidder was sent.
• In practice, the period commencing from the date on which the contracting authority awards the tender and signs the contract with the winner/contractor may be at most thirty-five (35) days for local contractors. For foreign contractors, an additional twenty-four (24) days will be added.

• The review authorities, in the order they appear in the application process, are as follows:
  • The contracting authority itself for complaints and the PPA for objections.
  • First instance court: the Administrative Courts handle lawsuits about the procurement process as the first instance court after the decisions made by the PPA.
  • Supreme Court: The Council of State examines the final decisions of the administrative courts, and concludes the appeal applications as the Supreme Court.
• An accelerated procedure is stipulated for disputes related to public procurement. Accordingly, the final decision of the Administrative Courts are appealable without requiring an application to be made before the District Administrative Court, which normally acts as the second instance court in administrative procedures. Nevertheless, as an exception, the decisions of Administrative Courts regarding the prohibition on participation in procurements can only be appealed after first applying to a District Administrative Court and obtaining a final decision from it.

• There is no filing fee stipulated for the complaints to be made to the contracting authority itself.
• The filing fee for an objection depends on the estimated costs of the procurements:
  • TRY 7,682 for procurements with estimated costs of up to TRY 1,281,438;
  • TRY 15,373 for procurements with estimated costs between TRY 1,281,438 and TRY 5,125,768;
  • TRY 23,060 for procurements with estimated costs between TRY 5,125,768 and TRY 38,443,271;
  • TRY 30,750 for procurements with estimated costs of TRY 38,443,271 and above.
• The application fee for a lawsuit at the Administrative Courts is TRY 59.30.

• Complaint or objection applications do not have a suspensive effect. An application for an interim injunction at the Administrative Courts is necessary and has a suspensive effect.
• However, unless the PPA has given its final decision about the objection, the contract cannot be signed by the contracting authority.

• As stressed above, Turkiye is not yet an EU member state, so the referenced directive is not applicable at the time of writing.

• Once the procurement contract has been signed, the contractual provisions may be amended in two cases, provided that the contract price is not exceeded, and the contracting parties mutually agree on the respective amendments according to general rules under Turkish law. The two cases are as follows: 
  • The place of work or delivery changes. 
  • The duration of the work and payment terms change, provided the work is done or delivered before the foreseen and agreed duration.
• A contract can be assigned to third parties on condition that the assignment is legally possible, and the contracting authority provides its written approval. However, such third parties must take over all rights and obligations arising out of the contract as previously determined in the tender process.

• As of 1 August 2021, bidders may only join a public procurement through the EPPP in accordance with the new government policy which aims to use digital technologies to provide public services to improve economic development.
• Use of e-signatures and/or m-signatures is required to reach the EPPP. 
• Actions that take place in a conventional procurement process, such as registration, bidding, announcement, clarification and correspondence between the administrative body and the bidders, must be carried out electronically under the EPPP