Public Procurement Law

The matters we handle within the framework of the Public Procurement Law No. 4734 and the Public Procurement Contracts Law No. 4735:

• Tenders for the procurement of supplies, services and works
• Review of tender documents and objections to the documents
• Qualification requirements, work experience certificates and document assessment
• Exclusion from the tender and disqualification of a bid
• Explanations for abnormally low tenders and their rejection
• Complaints to the contracting authority and applicable time limits
• Appeals to the Public Procurement Authority
• Actions for the annulment of decisions of the Public Procurement Board
• Debarment decisions from participating in tenders and their annulment
• Formation and performance of procurement contracts
• Termination and liquidation of contracts and forfeiture of guarantees
• Price difference calculations and claims for additional works
• Requests for extension of time and force majeure applications
• Disputes concerning direct procurement and negotiated procedures
• Allegations of bid rigging and the resulting criminal liability

In our work in this field, the provisions of the Public Procurement Law No. 4734 and the Public Procurement Contracts Law No. 4735, together with the implementing regulations on tenders, the Public Procurement General Communiqué and the rules on contracts and price differences, are taken into account. Since not every public purchase is subject to the same application system, the law governing the tender, any applicable exemption, the procurement method and the stage at which the dispute arose are determined first.

Before a bid is submitted, the administrative specifications, the technical specifications, the draft contract, the standard forms and the qualification criteria are reviewed together. Technical conditions that narrow competition or point to a particular product, qualification and experience requirements disproportionate to the nature of the work, inconsistencies between the specifications, and provisions on price differences, delivery, acceptance and contractual penalties are assessed with a view to the client's position in the tender.

We also carry out a legal review of the bid file prior to submission, covering the consistency of the qualification information table with the documents uploaded to EKAP (the Electronic Public Procurement Platform), trade registry records and signing authorities, the suitability of work experience certificates, the assessment of similar works and joint venture documents. Explanations for abnormally low tenders are prepared and reviewed with attention to each cost component and to the form, date and source of the supporting documents.

Complaints to the contracting authority, appeals to the Public Procurement Authority and actions for the annulment of decisions of the Public Procurement Board fall within our field of practice. In these processes, standing to apply, the content of the petition, the application fee, the power of attorney and representation documents and the steps to be completed through EKAP are verified alongside the application time limits.

Following the award, we provide legal support in the preparation and performance of procurement contracts, progress payments, price differences, work increases and additional works, extension of time and force majeure applications, delay penalties, termination, liquidation and final account procedures. The forfeiture of provisional or performance guarantees, debarment decisions and related criminal investigations concerning bid rigging are also addressed.

Among the disputes most frequently encountered in public procurement law are the disqualification of a bid or application, the rejection of abnormally low tender explanations, objections to conditions in the tender documents and disputes concerning the determination of the most economically advantageous tender. In such disputes, the conditions of the tender documents, the information submitted with the bid, the EKAP records, the evaluation method applied to other bidders and the principle of equal treatment are examined together.

A recurring question is whether a deficiency in the bid can be remedied at a later stage. A missing item of information in an existing and valid document that does not alter the substance of the bid may be completed under certain conditions; the failure to submit a mandatory document, or the failure to meet a qualification requirement on the bid date, does not produce the same legal consequence.

During the contract period, disputes commonly arise over claims for additional works, extensions of time, price differences, delay penalties and final accounts. The mere fact that work has been performed is not in every case sufficient to establish a claim; who requested the work and with what authority, whether a written instruction exists, the limits on work increases and whether the contractor gave timely notice are of importance.

The forfeiture of guarantees, the termination of the contract and debarment from participating in tenders may have financial consequences extending beyond the project concerned, affecting ongoing tenders and participation in new public procurements. Depending on the type of company and its shareholding structure, a debarment decision may also have consequences for partners, which is why the ownership structure and control relationships in other companies are examined in each file.

The public procurement process begins with the examination of the tender notice and tender documents, addenda and clarifications, the qualification information table and bid documents, EKAP notifications and transaction dates, tender commission decisions and, where relevant, decisions of the Public Procurement Board. In disputes arising during the contract period, the contract and its annexes, progress payments, minutes, technical reports and correspondence with the contracting authority establish the legal framework.

The application time limit and the competent authority are determined first, since in public procurement disputes the time limit often takes precedence over the merits. The period for a complaint to the contracting authority starts on the day following the date on which the unlawful act was, or ought to have been, noticed, and is five or ten days depending on the procurement procedure; applications concerning the tender documents must in addition be made before bids are submitted and no later than three working days before the tender or final application date.

For many acts in the tender process, a complaint to the contracting authority and an appeal to the Public Procurement Authority are administrative remedies that must be exhausted before an action is brought. Certain acts, such as the cancellation of a tender by the contracting authority without any complaint, may require a different judicial route; whether a direct action is available is therefore assessed according to the legal nature of the act concerned.

Where the matter proceeds to court, an action for annulment and, where the conditions are met, a request for a stay of execution are brought before the administrative courts. In debarment files, the concrete effects on the company's ongoing tenders, contracts and economic activity are set out in the application. Whether a dispute arises from an administrative act or from the performance of the contract is examined separately, as this determines the competent branch of jurisdiction.

In each file, the claims are assessed against the supporting documents, their legal basis and the commercial outcome sought, and the strengths and weaknesses of the file are set out clearly. The client is regularly informed about the stages of the process, the possible risks and the legal remedies that may be pursued.