1 turkish review system nihal sagun public procurement authority head of department 27 february 2008...

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TURKISH REVIEW SYSTEMTURKISH REVIEW SYSTEM

Nihal SAGUNNihal SAGUNPublic Procurement AuthorityPublic Procurement Authority

Head of DepartmentHead of Department

27 FEBRUARY 200827 FEBRUARY 2008ANKARAANKARA

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GENERAL INFORMATION REGARDING THE REVIEW SYSTEM IN TURKEY

SUBMISSION OF COMPLAINTS TO THE CONTRACTING ENTITY

OBJECTING COMPLAINT TO THE PPA JUDICIAL REVİEW PUBLIC PROCUREMENT AUTHORITY AND

PUBLIC PROCUREMENT BOARD WORKS ON AMENDMENTS OF LEGISLATION

OUTLINEOUTLINE

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LEGAL FRAMEWORKLEGAL FRAMEWORK

Public Procurement Law no. 4734 which entered into force on 01.01.2003 (articles 53, 54, 55, 56 and 57)

Regulation on Complaints on Procurements

Circular on Complaints on Procurements

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REMEDIESREMEDIES

Contracting EntityContracting Entity

Public Procurement Authority Public Procurement Authority

Administrative JurisdictionAdministrative Jurisdiction

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REMEDIESREMEDIES

The disputes arising from the public The disputes arising from the public procurement process are resolved in procurement process are resolved in accordance with the provisions of Law 4734 accordance with the provisions of Law 4734 through an administrative stage, where a through an administrative stage, where a complaint is submitted to the contracting entity complaint is submitted to the contracting entity and an objective complaint is submitted to the and an objective complaint is submitted to the Authority (PPA) and through an administrative Authority (PPA) and through an administrative proceeding, which is applied after the first proceeding, which is applied after the first stage.stage.

Any dispute after the conclusion of the contract Any dispute after the conclusion of the contract shall be resolved through the judicial courts.shall be resolved through the judicial courts.

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WHO CAN LODGE A COMPLAINT WHO CAN LODGE A COMPLAINT (ELIGIBILITY TO COMPLAIN)(ELIGIBILITY TO COMPLAIN)

Possible tenderersPossible tenderers

CandidatesCandidates

TenderersTenderers

who claim that their rights are violated and who claim that their rights are violated and they had a loss or will possibly have a loss due they had a loss or will possibly have a loss due to the procurement proceedings within the to the procurement proceedings within the period from the approval of the procurement period from the approval of the procurement until the conclusion of the contractuntil the conclusion of the contract

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POSSIBLE TENDERERSPOSSIBLE TENDERERS

In the Regulation on Complaints on In the Regulation on Complaints on Procurements, “Possible Tenderers” are defined Procurements, “Possible Tenderers” are defined as the real or legal entities or joint ventures as the real or legal entities or joint ventures establised by them which provide services in the establised by them which provide services in the area of the procurement and which have bought area of the procurement and which have bought the tender documents or pre-qualification the tender documents or pre-qualification documents.documents.

Possible tenderers have the right to make an Possible tenderers have the right to make an application about the non compliances between application about the non compliances between the arrangements provided in the pre-the arrangements provided in the pre-qualification and/or tender notice or the pre-qualification and/or tender notice or the pre-qualification and/or tender documents and the qualification and/or tender documents and the adminstrative implementations.adminstrative implementations.

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CANDIDATES AND TENDERERSCANDIDATES AND TENDERERS

Candidates have a right to lodge a complaint related Candidates have a right to lodge a complaint related to the administrative procedures about the pre-to the administrative procedures about the pre-qualification assessment. qualification assessment.

Candidates may lodge a complaint about the Candidates may lodge a complaint about the administrative proceedings related to the stages of administrative proceedings related to the stages of submission and evaluation of the tenders and submission and evaluation of the tenders and conclusion of the procurement.conclusion of the procurement.

However, the candidates cannot lodge a complaint However, the candidates cannot lodge a complaint about the pre-qualification document after they have about the pre-qualification document after they have made their pre-qualification applications; and the made their pre-qualification applications; and the tenderers cannot lodge a complaint about the tender tenderers cannot lodge a complaint about the tender document after they have submitted their tenders. document after they have submitted their tenders.

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APPLICATION FOR THE REVIEW OF APPLICATION FOR THE REVIEW OF CLAIMSCLAIMS

In addition to the ways to submit a complaint, In addition to the ways to submit a complaint, which are previously mentioned, according to which are previously mentioned, according to article 53 of the Law 4734, the Authority may also article 53 of the Law 4734, the Authority may also examine, where necessary, complaints claiming examine, where necessary, complaints claiming that there are violations of the Law and related that there are violations of the Law and related legislative provisions.legislative provisions.

Within this regard, real and legal entities may Within this regard, real and legal entities may

apply to the Authority claiming that the apply to the Authority claiming that the procurements held under the Law are in violation procurements held under the Law are in violation of the legislation and demand from the Authority to of the legislation and demand from the Authority to examine their claims examine their claims

However, those eligible to lodge a complaint However, those eligible to lodge a complaint cannot apply to have their claims reviewed. cannot apply to have their claims reviewed.

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FORM REQUIREMENTS IN THE SUBMISSON FORM REQUIREMENTS IN THE SUBMISSON OF COMPLAINTSOF COMPLAINTS

The arrangements related to how the complaints The arrangements related to how the complaints will be submitted are regulated in the Regulation.will be submitted are regulated in the Regulation.

Complaints are submitted via a petition where; Complaints are submitted via a petition where;

The full identity of the complainant,The full identity of the complainant, The tender and the contracting entity subject The tender and the contracting entity subject

to complaint,to complaint, The date when the condition which is The date when the condition which is

complained about or asked to be reviewed is complained about or asked to be reviewed is realised,realised,

The subjects which are complanied about or The subjects which are complanied about or asked to be reviewed, their reasons and asked to be reviewed, their reasons and supportive evidences are stated. supportive evidences are stated.

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FORM REQUIREMENTS IN THE FORM REQUIREMENTS IN THE SUBMISSON OF COMPLAINTSSUBMISSON OF COMPLAINTS

When submitting a complaint to the Authority, When submitting a complaint to the Authority, the fee for application, which is updated each the fee for application, which is updated each year, should be deposited to the accounts of year, should be deposited to the accounts of the Authority.the Authority.

The fee for 2008 is 301 YTL (approx. 170 EUR).The fee for 2008 is 301 YTL (approx. 170 EUR).

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COMPLAINT APPLICATION TO THE COMPLAINT APPLICATION TO THE CONTRACTING ENTITYCONTRACTING ENTITY

The complaints related to tenders should first The complaints related to tenders should first be lodged to the contracting entitybe lodged to the contracting entity

These complaints will be taken into account These complaints will be taken into account by the entity if;by the entity if;

the contract has not been signed yet,the contract has not been signed yet,

they are made in 15 days following the they are made in 15 days following the date when the candidates or tenderers or date when the candidates or tenderers or possible tenderers realise or supposed to possible tenderers realise or supposed to realise the situation which causes the realise the situation which causes the complaint. complaint.

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SUBMISSION OF COMPLAINTS TO THE SUBMISSION OF COMPLAINTS TO THE CONTRACTING ENTITYCONTRACTING ENTITY

Once the complaint is lodged, the contracting Once the complaint is lodged, the contracting entity cannot conclude the contract unless the entity cannot conclude the contract unless the contracting officer states that it is necessary to contracting officer states that it is necessary to continue with the procurement proceedings due continue with the procurement proceedings due to urgency and public interest considerations. to urgency and public interest considerations.

The contracting entity gives a justified decision The contracting entity gives a justified decision in 30 days following the submission of the in 30 days following the submission of the complaint.complaint.

If the entity does not take a decision within this If the entity does not take a decision within this period, the complaint is considered to be period, the complaint is considered to be implicitly rejected. implicitly rejected.

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SUBMISSION OF COMPLAINTS TO SUBMISSION OF COMPLAINTS TO THE CONTRACTING ENTITYTHE CONTRACTING ENTITY

The decision is communicated to the The decision is communicated to the candidates or tenderers in 7 days at the candidates or tenderers in 7 days at the latest.latest.

The contracting entity does not sign the The contracting entity does not sign the contract until the Authority concludes its contract until the Authority concludes its examination of the challenge and notifies its examination of the challenge and notifies its decision.decision.

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SUBMISSION OF COMPLAINTS TO SUBMISSION OF COMPLAINTS TO THE CONTRACTING ENTITYTHE CONTRACTING ENTITY

Upon the submission of complaints, the Upon the submission of complaints, the contracting entity gives one of the following contracting entity gives one of the following decisions;decisions;

Corrective action,Corrective action,

Annulment of the procurement proceedings,Annulment of the procurement proceedings,

Rejection of the complaint. Rejection of the complaint.

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DECISION TO CONTINUE WITH THE DECISION TO CONTINUE WITH THE PROCUREMENT PROCEEDINGSPROCUREMENT PROCEEDINGS

According to article 55 of the law, following the According to article 55 of the law, following the submission of a complaint, the contracting officer may submission of a complaint, the contracting officer may certify that urgency and public interest considerations certify that urgency and public interest considerations require the tender proceedings to continue.require the tender proceedings to continue.

The contract cannot be signed before 7 days following The contract cannot be signed before 7 days following the date when the applicant is notified about the the date when the applicant is notified about the decision which concludes the application of complaint decision which concludes the application of complaint with the decision of the contracting entity to continue with the decision of the contracting entity to continue with the procurement proceedings due to urgency and with the procurement proceedings due to urgency and public interest considerations. public interest considerations.

In case the contract is signed without abiding by this In case the contract is signed without abiding by this period and without a proper notification, the contract is period and without a proper notification, the contract is rendered null and void.rendered null and void.

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SUBMISSION OF AN OBJECTION COMPLAINT TO THE AUTHORITY

The right to submit an objection complaint can be used in The right to submit an objection complaint can be used in case the complaint lodged to the contracting entity is not case the complaint lodged to the contracting entity is not responded in 30 days or if the complainant does not find responded in 30 days or if the complainant does not find the decision of the contracting entity appropriate. the decision of the contracting entity appropriate.

An objection complaint is made to the Authority in 15 days An objection complaint is made to the Authority in 15 days following the date of notification of the decisions about the following the date of notification of the decisions about the contracting entity on the complaints which are lodged to contracting entity on the complaints which are lodged to the entity during the procurement proceedings or following the entity during the procurement proceedings or following the end of the 30 day response period, if the contracting the end of the 30 day response period, if the contracting entity does not give a decision within this 30 day period.entity does not give a decision within this 30 day period.

In cases where the decision to continue with the In cases where the decision to continue with the procurement proceedings due to urgency and public procurement proceedings due to urgency and public interest considerations, the objection complaint should be interest considerations, the objection complaint should be submitted to the Authority in 3 days after the continuation submitted to the Authority in 3 days after the continuation decision is taken. decision is taken.

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REVIEW OF OBJECTION COMPLAINTS

The complaints submitted to the Authority are The complaints submitted to the Authority are published on the website of the Authority. published on the website of the Authority.

The complaints are first reviewed on the basis The complaints are first reviewed on the basis of the form requirements.of the form requirements.

In case of complaints with missing documents In case of complaints with missing documents and for which the submission period has not and for which the submission period has not expired yet, the missing elements can be expired yet, the missing elements can be completed until the end of the submission completed until the end of the submission period. In this case, an announcement is made period. In this case, an announcement is made on the website of the Authority.on the website of the Authority.

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REVIEW OF OBJECTION COMPLAINTS

If there are no incompliances with the form If there are no incompliances with the form requirements, the main review process starts.requirements, the main review process starts.

In case there are incompliances with the form In case there are incompliances with the form requirements, the Board decides whether to review the requirements, the Board decides whether to review the complaint within the scope of review of claims.complaint within the scope of review of claims.

When the review starts, the contracting entity is When the review starts, the contracting entity is

requested to provide the necessary documents and requested to provide the necessary documents and information or the tender file. information or the tender file.

Where necessary, a hearing can be held with the Where necessary, a hearing can be held with the participation of the parties and other related persons.participation of the parties and other related persons.

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DECISIONS OF THE PUBLIC PROCUREMENT BOARD

For each complaint for which the main review For each complaint for which the main review process is initiated, a report is prepared and process is initiated, a report is prepared and the Board gives a decision.the Board gives a decision.

The Public Procurement Board gives two The Public Procurement Board gives two types of decisions related to complaints:types of decisions related to complaints:

Interim decisionInterim decision Final decisionFinal decision

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INTERIM DECISIONSINTERIM DECISIONS

The Public Procurement Board;The Public Procurement Board;

decides whether to stop the procurement decides whether to stop the procurement proceedings or not, proceedings or not,

related to the complaints about the tenders related to the complaints about the tenders which are decided to be continued due to which are decided to be continued due to urgency and public interest considerations, in urgency and public interest considerations, in case the reasons for such decision is not found case the reasons for such decision is not found appropriate, decides about the procurement appropriate, decides about the procurement process by removing this decision. process by removing this decision.

in the complaints which are not in compliance in the complaints which are not in compliance with the form requirements, decides to continue with the form requirements, decides to continue with the review of the claims if other conditions with the review of the claims if other conditions exist. exist.

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FINAL DECISIONS

The Board gives its final decision in 45 days The Board gives its final decision in 45 days at the latest, on the basis of results of the at the latest, on the basis of results of the review of complaints.review of complaints.

The contracting entity is obliged to carry out The contracting entity is obliged to carry out the actions required by the decisions of the the actions required by the decisions of the Board which create a change in the legal Board which create a change in the legal situation.situation.

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FINAL DECISIONS

The Board gives one of the following decisions;The Board gives one of the following decisions;

Corrective action: in cases where the issue can be resolved Corrective action: in cases where the issue can be resolved with a correction by the contracting entity without having with a correction by the contracting entity without having to interrupt the procurement process,to interrupt the procurement process,

Annulment of the procurement proceedings: if a condition Annulment of the procurement proceedings: if a condition is detected which prevents the procurement proceedings is detected which prevents the procurement proceedings from being carried out, cannot be removed with corrective from being carried out, cannot be removed with corrective actions, and violates the Law and relevant legislationactions, and violates the Law and relevant legislation

Rejection of the complaint,Rejection of the complaint,

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NOTIFICATION OF THE DECISIONS

The Board may also decide to notify the related The Board may also decide to notify the related contracting entities about the detected contracting entities about the detected violations in order for them to perform necessary violations in order for them to perform necessary corrective actions and/or to lodge a criminal corrective actions and/or to lodge a criminal complaint to the Chief Public Prosecutor’s Office. complaint to the Chief Public Prosecutor’s Office.

The decisions are notified to the parties and are The decisions are notified to the parties and are published in the website of the Authority in 5 published in the website of the Authority in 5 days. The final decisions are also published in days. The final decisions are also published in the Official Gazette. the Official Gazette.

The decision to stop the procurement process The decision to stop the procurement process should be notified to the parties immediately. should be notified to the parties immediately.

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REVIEW OF THE CLAIMS BY THE REVIEW OF THE CLAIMS BY THE AUTHORITYAUTHORITY

Where necessary, the Board has the authority Where necessary, the Board has the authority to review and conclude the claims stating that to review and conclude the claims stating that the Law and related legislation are violated. the Law and related legislation are violated.

Within this regard, the Board can review Within this regard, the Board can review necessary claims related to the serious and necessary claims related to the serious and concrete violations of the procurement concrete violations of the procurement legislation and the written complaints legislation and the written complaints submitted to the Authority. submitted to the Authority.

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REVIEW OF THE CLAIMS BY THE REVIEW OF THE CLAIMS BY THE AUTHORITYAUTHORITY

As a result of the review of the claims, As a result of the review of the claims, the Board shall decide that;the Board shall decide that;

the claim is not appropriate, orthe claim is not appropriate, or

on the basis of the assessment of on the basis of the assessment of the violations of legislation, the the violations of legislation, the contracting entity will be notified to contracting entity will be notified to take necessary actions.take necessary actions.

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JUDICIAL REVIEWJUDICIAL REVIEW

Submission of an objection complaint is obligatory Submission of an objection complaint is obligatory before a legal action is taken.before a legal action is taken.

According to article 57 of the Law, the final decisions According to article 57 of the Law, the final decisions of the Authority can be appealed in Ankara of the Authority can be appealed in Ankara Administrative Courts within 60 days following the Administrative Courts within 60 days following the notification of the decisions. notification of the decisions.

As a result of the legal proceeding, if the judgement As a result of the legal proceeding, if the judgement of the court provides for taking a new decision, the of the court provides for taking a new decision, the former decision is cancelled and a new decision is former decision is cancelled and a new decision is taken in compliance with the requirements of the taken in compliance with the requirements of the court’s judgement.court’s judgement.

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PUBLIC PROCUREMENT PUBLIC PROCUREMENT AUTHORITYAUTHORITY

With article 53 of the Law 4734; the With article 53 of the Law 4734; the Public Public Procurement Authority Procurement Authority is established as a public is established as a public legal entity, with administrative and financial legal entity, with administrative and financial autonomyautonomy and with regulatory and supervisory and with regulatory and supervisory authority.authority.

One of the main duties of the Authority is “to One of the main duties of the Authority is “to evaluate and conclude any complaints claiming evaluate and conclude any complaints claiming that the proceedings carried out by the contracting that the proceedings carried out by the contracting entity within the period from the commencement of entity within the period from the commencement of the tender proceedings until the signing of the the tender proceedings until the signing of the contract are in violation of this Law and the related contract are in violation of this Law and the related legislative provisions.”legislative provisions.”

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PUBLIC PROCUREMENT AUTHORITYPUBLIC PROCUREMENT AUTHORITY

The Authority is related with the Ministry of The Authority is related with the Ministry of Finance.Finance.

The Authority has full independence when The Authority has full independence when carrying out its duties. No agency, body, carrying out its duties. No agency, body, authority or person can give orders or authority or person can give orders or instructions to influence the decisions of the instructions to influence the decisions of the Authority.Authority.

Public Procurement Authority consists of the Public Procurement Authority consists of the Public Procurement Board, Presidency and Public Procurement Board, Presidency and service units.service units.

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PUBLIC PROCUREMENT BOARDPUBLIC PROCUREMENT BOARD

The decision organ of the Public Procurement The decision organ of the Public Procurement Authority is the Public Procurement Board. Authority is the Public Procurement Board.

The Board is composed of ten members, including The Board is composed of ten members, including one chairman and one secondary chairman. The one chairman and one secondary chairman. The chairman of the Board is also the President of the chairman of the Board is also the President of the Authority. Authority.

The members of the Board shall be appointed by the The members of the Board shall be appointed by the Council of Ministers for a period of 5 years as Council of Ministers for a period of 5 years as follows: 2 candidates proposed by the Ministry of follows: 2 candidates proposed by the Ministry of Finance, 3 candidates proposed by the Ministry of Finance, 3 candidates proposed by the Ministry of Public Works and Settlement, and one each Public Works and Settlement, and one each candidate proposed by the Presidency of Court of candidate proposed by the Presidency of Court of Accounts, Council of State and the Ministry in charge Accounts, Council of State and the Ministry in charge of Undersecretariat of Treasury, and one each of Undersecretariat of Treasury, and one each candidate proposed among professional groups candidate proposed among professional groups relating to public procurements by Turkish Union of relating to public procurements by Turkish Union of Chambers and Stock Markets (TOBB) and Turkish Chambers and Stock Markets (TOBB) and Turkish Employers Union Confederation (TISK).Employers Union Confederation (TISK).

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NUMBER OF PROCUREMENTS NUMBER OF PROCUREMENTS AND COMPLAINTS BY YEARSAND COMPLAINTS BY YEARS

Years Procurements Complaints%

2004 95.105 1.892 1,99

2005 115.639 2.469 2,13

2006 137.857 3.348 2,42

2007 (9 months) 134.607 3343 2.48

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LEGISLATIVE CHANGES LEGISLATIVE CHANGES Demand for Explanation – Waiting Period Demand for Explanation – Waiting Period

for the Conclusion of the Contract for the Conclusion of the Contract

According to the article 41 of the Law, the contract award According to the article 41 of the Law, the contract award granted by the contracting authority shall be notified to all granted by the contracting authority shall be notified to all the bidders in person or by mail. In cases of notification by the bidders in person or by mail. In cases of notification by mail, the 7th day shall be assumed as the date of mail, the 7th day shall be assumed as the date of notification.notification.

Should the bidders, whose bid is not qualified for evaluation Should the bidders, whose bid is not qualified for evaluation or not eligible, participating in the tender make a request or not eligible, participating in the tender make a request within 5 days after the date of notification, the contracting within 5 days after the date of notification, the contracting authority is obliged to set forth the rationale thereof within 5 authority is obliged to set forth the rationale thereof within 5 days.days.

At the end of these periods, the bidder who is awarded the At the end of these periods, the bidder who is awarded the contract shall be invited for the contract and the contract contract shall be invited for the contract and the contract can be signed. can be signed.

Request for explanation from the contracting authority is not Request for explanation from the contracting authority is not a means to be necessarily exhausted before the complaint. a means to be necessarily exhausted before the complaint.

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LEGISLATIVE CHANGES LEGISLATIVE CHANGES Demand for Explanation – Waiting Period Demand for Explanation – Waiting Period

for the Conclusion of the Contract for the Conclusion of the Contract Foreseen changes :Foreseen changes :

Request for explanation is removed.Request for explanation is removed.

The rationaleThe rationaless for non-qualification of the bids for for non-qualification of the bids for evaluation or ineligibility of the bids shall be evaluation or ineligibility of the bids shall be included in the notification of the contract award.included in the notification of the contract award.

The provision that the contract cannot be The provision that the contract cannot be concluded unless 10 days elapse after the concluded unless 10 days elapse after the notification of the contract award to all the notification of the contract award to all the bidders is clearly regulated. bidders is clearly regulated.

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LEGISLATIVE CHANGES LEGISLATIVE CHANGES Changes Regarding the Improvement of Changes Regarding the Improvement of

the Complaint Systemthe Complaint System

Rules regarding form and procedure of complaints Rules regarding form and procedure of complaints and objections are clearly regulated.and objections are clearly regulated.

It is suggested to remove the provision regarding It is suggested to remove the provision regarding the ability to take a decision for the continuity of the ability to take a decision for the continuity of tender procedures on the basis of urgency and tender procedures on the basis of urgency and public benefit according to the contracting officer.public benefit according to the contracting officer.

Periods are shortened in general.Periods are shortened in general.

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15-day time limit for application to the contracting 15-day time limit for application to the contracting authority is reduced to 10 days, (5 days in 21 /(b) and authority is reduced to 10 days, (5 days in 21 /(b) and (c)) (c))

30-day review period for the contracting authority is 30-day review period for the contracting authority is reduced to 10 days,reduced to 10 days,

7-day time limit for the notification of the award is 7-day time limit for the notification of the award is reduced to 3 days,reduced to 3 days,

15-day time limit for the application to the Authority is 15-day time limit for the application to the Authority is reduced to 10 days,reduced to 10 days,

45-day review period of the Authority is reduced to 30 45-day review period of the Authority is reduced to 30 days (10 days in 21 /(b) and (c)).days (10 days in 21 /(b) and (c)).

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Provided that the complaints related with Provided that the complaints related with notification, prenotification, pre--qualification or tender document are qualification or tender document are within the time limit for lodging a complaint to the within the time limit for lodging a complaint to the contracting authority, it is regulated that complaints contracting authority, it is regulated that complaints can be lodged, at the latest, 3 workdays before the can be lodged, at the latest, 3 workdays before the contract or the deadline for tenders and that they are contract or the deadline for tenders and that they are concluded by the contracting authorities before the concluded by the contracting authorities before the contract or the deadline for tenders. contract or the deadline for tenders.

It is also clearly regulated that It is also clearly regulated that if if there there is is an an application made to the Authority, the contract application made to the Authority, the contract cannot be signed before the final decision is made.cannot be signed before the final decision is made.

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THANK YOUTHANK YOU

1 turkish review system nihal sagun public procurement authority head of department 27 february 2008...

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