Turkey Presentation, Erkan Ozdemir, PPA, Review and remedies procedures in practice, 7th Regional Public Procurement Conference, Vlora, 9-10 Sept 2014_English
THE REPUBLIC OF TURKEY
Review and Remedies Procedures in Turkey
7th IPA Regional Public Procurement Conference
9 – 10 September 2014 Vlora, Albania
ERKAN OZDEMIR Public Procurement Specialist
Regulation Department Public Procurement Authority
Who Can File a Complaint?
The Turkish legislative framework on remedies is provided for by PPL No.4734 and its complementary secondary legislation. The PPL contains detailed rules for review and complaint procedures.
Who can file a complaint?
The PPL limited locus standi to actual or potential tenderers and candidates who claim that they have suffered a loss of right or damage or are likely to suffer a loss of right or damage due to unlawful procedures or actions within the process of the tender. (In order to become a potential tenderer, tender or pre-qualification documents must be purchased)
Stages of Complaint Review System in Turkey
The PPL establishes a three-tier system for reviewing complaints lodged by disgruntled economic operators.
Complaint application to the Contracting Authority
In the first stage a complaint must be submitted to the contracting authority itself within 10 days (5 days in the case of emergency contracts) running from the date when the decision being challenged was sent or published or in any event ten days running from the notification of the contracting authority’s decision.
Appeal application to the Public Procurement Authority
A complainant who is dissatisfied with the decision of the contracting authority may, as a second step, appeal this decision to the PPA within 10 days.
Appeal to the Administrative Courts
The final decision on the appeal made by the PPA is then subject to the jurisdiction of the administrative courts within a period of 60 days.
Standstill Period and Automatic Suspensison
In December 2008 an extensive amendment to the PPL was adopted, notably to strengthen the review procedure.
Two important steps have been taken in order to ensure that the Turkish review system meets the requirements of EU law. 1- The minumum standstill period between notification of the award decision and conclusion of the contract and, 2- Automatic suspension of the possibility to conclude the contract upon complaint, were introduced to the PPL through this amendment.
Standstill Period and Automatic Suspension
Pursuant to Art.41 of the PPL the contract may not be signed,
Unless ten days have passed in general,
and unless five days have passed in the case of emergency contracts specified in article 21(b) and (c) of the PPL. following the notification of all the tenderers about the tender result.
Standstill Period and Automatic Suspensison
Furthermore, where an economic operator challenges the tender result before the contracting authority within the designated period (10 or 5 days), the suspension of the conclusion of the contract will continue till the notification date of the authority’s decision and where sequential appeal is made to the PPA within ten days following the decision by the contracting authority, suspension will continue till the decision on appeal has been taken by the PPA.
With regard to the concept of ineffectiveness, there is no explicit provision in the PPL.
However, Art.56 of the PPL provides that conclusion of the contract without complying with the standstill periods and procedures set out in the PPL does not constitute an obstacle for the PPA to review the application and take one of the decisions stated in Art.54 of the PPL. (i.e. setting aside, corrective action and rejection of the application).
It is established practice that if the failure to apply the standstill period is combined with an infringement of the substantive rules, the PPA can set aside the award decision which ultimately results in the termination of the concluded contract by the contracting authority itself, as the legal basis of the contract has been removed.
Turkish system on ineffectiveness is partially in line with the Art.2d of the Remedies Directive, which states that under certain cases specified therein a signed contract must be considered ineffective by a review body or its ineffectiveness must be the result of the decision of such a review body.
Although the sanction of ineffectiveness implicitly exists in the Turkish remedies system, unfortunately the PPL does not provide any provisions on alternative penalties which review bodies (PPA or administrative courts) may impose on contracting authorities such as the shortening of the duration of the contract and/or the payment of a fine.
In this respect Turkish remedies system seems to conflict with the Remedies Directive and so further legaslative initiatives are required to meet the requirements of the Art 2e of the Remedies Directive.
Upon application the PPA shall take the final decision
within 20 days in general,
within 10 working days for the appeals against tenders conducted in urgent cases and against actions taken by the contracting authority to cancel the tender upon a complaint or appeal.
The PPL provides two specific remedies to be made available to disappointed economic operators in actions against contracting authorities, as follows:
i.the corrective action ii.the annulment of the procurement proceedings
Therefore the PPL gives one of the powers to the PPA specified in Art.2(1) (b) of the Remedies Directive. (i.e. setting aside of contracting decisions)
in cases where the infringement may be remedied through correction and where it is not necessary to interrupt the procurement process
where the infringement would constitute an obstacle for the continuation of the tender proceeding and which cannot be remedied by taking corrective measures
However, there is no provision for interim measures and compensation for damages in the PPL.
As indicated above, in cases of the initiation of review proceedings against any contracting decisions, the contract cannot be concluded until the PPA has taken its decision.
Since contracting authorities cannot conclude the contract before the PPA has made a decision on the merits of the case, this automatic suspension of the possibility to conclude the contract seems to obviate the existence of interim measures with regard to procurement process within the Turkish review system.
There is no provision in the PPL regarding the award of damages; the PPA is not given the power to grant compensation for damages.
Nonetheless damages can always be claimed before the administrative courts pursuant to Art.125 of the Turkish Constitution and Art.2 of the Procedure of Administrative Justice Law.
Since the Remedies Directive allows the Member States latitude to assign different tasks concerning the remedy procedure to separate bodies responsible for different aspects of the review procedure, the fact that under the Turkish review system the award of damages to persons harmed by an infringement is a matter for the administrative courts should not be seen to
Main Figures on Complaint applications to PPA in 2013
Share in Total
*Exceptions are not included.
Turkey, as an EU candidate country, needs to bring its national review system on public procurement to full compliance with EU legislation before accession. In the last decade, Turkey has taken some important steps towards this objective.
Although these developments have enhanced its compliance with the Remedies Directive, there are still some steps that need to be taken to ensure that the Turkish review system meets the requirements of EU law. For this purpose, further legislative initiatives will be introduced before accession.