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TURKISH REVIEW SYSTEM Nihal SAGUN Public Procurement Authority Head of Department 27 FEBRUARY 2008 ANKARA. OUTLINE. GENERAL INFORMATION REGARDING THE REVIEW SYSTEM IN TURKEY SUBMISSION OF COMPLAINTS TO THE CONTRACTING ENTITY OBJECTING COMPLAINT TO THE PPA JUDICIAL REVİEW
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TURKISH REVIEW SYSTEM Nihal SAGUN Public Procurement Authority Head of Department 27 FEBRUARY 2008 ANKARA
OUTLINE • 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
LEGAL 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
REMEDIES • Contracting Entity • Public Procurement Authority • Administrative Jurisdiction
REMEDIES • The disputes arising from the public procurement process are resolved in accordance with the provisions of Law 4734 through an administrative stage, where a complaint is submitted to the contracting entity and an objective complaint is submitted to the Authority (PPA) and through an administrative proceeding, which is applied after the first stage. • Any dispute after the conclusion of the contract shall be resolved through the judicial courts.
WHO CAN LODGE A COMPLAINT (ELIGIBILITY TO COMPLAIN) • Possible tenderers • Candidates • Tenderers who claim that their rights are violated and they had a loss or will possibly have a loss due to the procurement proceedings within the period from the approval of the procurement until the conclusion of the contract
POSSIBLE TENDERERS • In the Regulation on Complaints on Procurements, “Possible Tenderers” are defined as the real or legal entities or joint ventures establised by them which provide services in the area of the procurement and which have bought the tender documents or pre-qualification documents. • Possible tenderers have the right to make an application about the non compliances between the arrangements provided in the pre-qualification and/or tender notice or the pre-qualification and/or tender documents and the adminstrative implementations.
CANDIDATES AND TENDERERS • Candidates have a right to lodge a complaint related to the administrative procedures about the pre-qualification assessment. • Candidates may lodge a complaint about the administrative proceedings related to the stages of submission and evaluation of the tenders and conclusion of the procurement. • However, the candidates cannot lodge a complaint about the pre-qualification document after they have made their pre-qualification applications; and the tenderers cannot lodge a complaint about the tender document after they have submitted their tenders.
APPLICATION FOR THE REVIEW OF CLAIMS • In addition to the ways to submit a complaint, which are previously mentioned, according to article 53 of the Law 4734, the Authority may also examine, where necessary, complaints claiming that there are violations of the Law and related legislative provisions. • Within this regard, real and legal entities may apply to the Authority claiming that the procurements held under the Law are in violation of the legislation and demand from the Authority to examine their claims • However, those eligible to lodge a complaint cannot apply to have their claims reviewed.
FORM REQUIREMENTS IN THE SUBMISSON OF COMPLAINTS • The arrangements related to how the complaints will be submitted are regulated in the Regulation. • Complaints are submitted via a petition where; • The full identity of the complainant, • The tender and the contracting entity subject to complaint, • The date when the condition which is complained about or asked to be reviewed is realised, • The subjects which are complanied about or asked to be reviewed, their reasons and supportive evidences are stated.
FORM REQUIREMENTS IN THE SUBMISSON OF COMPLAINTS • When submitting a complaint to the Authority, the fee for application, which is updated each year, should be deposited to the accounts of the Authority. • The fee for 2008 is 301 YTL (approx. 170 EUR).
COMPLAINT APPLICATION TO THE CONTRACTING ENTITY • The complaints related to tenders should first be lodged to the contracting entity • These complaints will be taken into account by the entity if; • the contract has not been signed yet, • they are made in 15 days following the date when the candidates or tenderers or possible tenderers realise or supposed to realise the situation which causes the complaint.
SUBMISSION OF COMPLAINTS TO THE CONTRACTING ENTITY • Once the complaint is lodged, the contracting entity cannot conclude the contract unless the contracting officer states that it is necessary to continue with the procurement proceedings due to urgency and public interest considerations. • The contracting entity gives a justified decision in 30 days following the submission of the complaint. • If the entity does not take a decision within this period, the complaint is considered to be implicitly rejected.
SUBMISSION OF COMPLAINTS TO THE CONTRACTING ENTITY • The decision is communicated to the candidates or tenderers in 7 days at the latest. • The contracting entity does not sign the contract until the Authority concludes its examination of the challenge and notifies its decision.
SUBMISSION OF COMPLAINTS TO THE CONTRACTING ENTITY Upon the submission of complaints, the contracting entity gives one of the following decisions; • Corrective action, • Annulment of the procurement proceedings, • Rejection of the complaint.
DECISION TO CONTINUE WITH THE PROCUREMENT PROCEEDINGS • According to article 55 of the law, following the submission of a complaint, the contracting officer may certify that urgency and public interest considerations require the tender proceedings to continue. • The contract cannot be signed before 7 days following the date when the applicant is notified about the decision which concludes the application of complaint with the decision of the contracting entity to continue with the procurement proceedings due to urgency and public interest considerations. • In case the contract is signed without abiding by this period and without a proper notification, the contract is rendered null and void.
SUBMISSION OF AN OBJECTION COMPLAINT TO THE AUTHORITY • The right to submit an objection complaint can be used in case the complaint lodged to the contracting entity is not responded in 30 days or if the complainant does not find the decision of the contracting entity appropriate. • An objection complaint is made to the Authority in 15 days following the date of notification of the decisions about the contracting entity on the complaints which are lodged to the entity during the procurement proceedings or following the end of the 30 day response period, if the contracting entity does not give a decision within this 30 day period. • In cases where the decision to continue with the procurement proceedings due to urgency and public interest considerations, the objection complaint should be submitted to the Authority in 3 days after the continuation decision is taken.
REVIEW OF OBJECTION COMPLAINTS • The complaints submitted to the Authority are published on the website of the Authority. • The complaints are first reviewed on the basis of the form requirements. • In case of complaints with missing documents and for which the submission period has not expired yet, the missing elements can be completed until the end of the submission period. In this case, an announcement is made on the website of the Authority.
REVIEW OF OBJECTION COMPLAINTS • If there are no incompliances with the form requirements, the main review process starts. • In case there are incompliances with the form requirements, the Board decides whether to review the complaint within the scope of review of claims. • When the review starts, the contracting entity is requested to provide the necessary documents and information or the tender file. • Where necessary, a hearing can be held with the participation of the parties and other related persons.
DECISIONS OF THE PUBLIC PROCUREMENT BOARD • For each complaint for which the main review process is initiated, a report is prepared and the Board gives a decision. • The Public Procurement Board gives two types of decisions related to complaints: • Interim decision • Final decision
INTERIM DECISIONS The Public Procurement Board; • decides whether to stop the procurement proceedings or not, • related to the complaints about the tenders which are decided to be continued due to urgency and public interest considerations, in case the reasons for such decision is not found appropriate, decides about the procurement process by removing this decision. • in the complaints which are not in compliance with the form requirements, decides to continue with the review of the claims if other conditions exist.
FINAL DECISIONS • The Board gives its final decision in 45 days at the latest, on the basis of results of the review of complaints. • The contracting entity is obliged to carry out the actions required by the decisions of the Board which create a change in the legal situation.
FINAL DECISIONS The Board gives one of the following decisions; • Corrective action: in cases where the issue can be resolved with a correction by the contracting entity without having to interrupt the procurement process, • Annulment of the procurement proceedings: if a condition is detected which prevents the procurement proceedings from being carried out, cannot be removed with corrective actions, and violates the Law and relevant legislation • Rejection of the complaint,
NOTIFICATION OF THE DECISIONS • The Board may also decide to notify the related contracting entities about the detected violations in order for them to perform necessary corrective actions and/or to lodge a criminal complaint to the Chief Public Prosecutor’s Office. • The decisions are notified to the parties and are published in the website of the Authority in 5 days. The final decisions are also published in the Official Gazette. • The decision to stop the procurement process should be notified to the parties immediately.
REVIEW OF THE CLAIMS BY THE AUTHORITY • Where necessary, the Board has the authority to review and conclude the claims stating that the Law and related legislation are violated. • Within this regard, the Board can review necessary claims related to the serious and concrete violations of the procurement legislation and the written complaints submitted to the Authority.
REVIEW OF THE CLAIMS BY THE AUTHORITY • As a result of the review of the claims, the Board shall decide that; • the claim is not appropriate, or • on the basis of the assessment of the violations of legislation, the contracting entity will be notified to take necessary actions.
JUDICIAL REVIEW • Submission of an objection complaint is obligatory before a legal action is taken. • According to article 57 of the Law, the final decisions of the Authority can be appealed in Ankara Administrative Courts within 60 days following the notification of the decisions. • As a result of the legal proceeding, if the judgement of the court provides for taking a new decision, the former decision is cancelled and a new decision is taken in compliance with the requirements of the court’s judgement.
PUBLIC PROCUREMENT AUTHORITY • With article 53 of the Law 4734; the Public Procurement Authority is established as a public legal entity, with administrative and financial autonomyand with regulatory and supervisory authority. • One of the main duties of the Authority is “to evaluate and conclude any complaints claiming that the proceedings carried out by the contracting entity within the period from the commencement of the tender proceedings until the signing of the contract are in violation of this Law and the related legislative provisions.”
PUBLIC PROCUREMENT AUTHORITY • The Authority is related with the Ministry of Finance. • The Authority has full independence when carrying out its duties. No agency, body, authority or person can give orders or instructions to influence the decisions of the Authority. • Public Procurement Authority consists of the Public Procurement Board, Presidency and service units.
PUBLIC PROCUREMENT BOARD • The decision organ of the Public Procurement Authority is the Public Procurement Board. • The Board is composed of ten members, including one chairman and one secondary chairman. The chairman of the Board is also the President of the Authority. • The members of the Board shall be appointed by the Council of Ministers for a period of 5 years as follows: 2 candidates proposed by the Ministry of Finance, 3 candidates proposed by the Ministry of Public Works and Settlement, and one each candidate proposed by the Presidency of Court of Accounts, Council of State and the Ministry in charge of Undersecretariat of Treasury, and one each candidate proposed among professional groups relating to public procurements by Turkish Union of Chambers and Stock Markets (TOBB) and Turkish Employers Union Confederation (TISK).
LEGISLATIVE CHANGES Demand for Explanation – Waiting Period for the Conclusion of the Contract • According to the article 41 of the Law, the contract award granted by the contracting authority shall be notified to all the bidders in person or by mail. In cases of notification by mail, the 7th day shall be assumed as the date of notification. • Should the bidders, whose bid is not qualified for evaluation or not eligible, participating in the tender make a request within 5 days after the date of notification, the contracting authority is obliged to set forth the rationale thereof within 5 days. • At the end of these periods, the bidder who is awarded the contract shall be invited for the contract and the contract can be signed. • Request for explanation from the contracting authority is not a means to be necessarily exhausted before the complaint.
LEGISLATIVE CHANGES Demand for Explanation – Waiting Period for the Conclusion of the Contract Foreseen changes : • Request for explanation is removed. • The rationales for non-qualification of the bids for evaluation or ineligibility of the bids shall be included in the notification of the contract award. • The provision that the contract cannot be concluded unless 10 days elapse after the notification of the contract award to all the bidders is clearly regulated.
LEGISLATIVE CHANGES Changes Regarding the Improvement of the Complaint System • Rules regarding form and procedure of complaints and objections are clearly regulated. • It is suggested to remove the provision regarding the ability to take a decision for the continuity of tender procedures on the basis of urgency and public benefit according to the contracting officer. • Periods are shortened in general.
LEGISLATIVE CHANGES Changes Regarding the Improvement of the Complaint System • 15-day time limit for application to the contracting authority is reduced to 10 days, (5 days in 21 /(b) and (c)) • 30-day review period for the contracting authority is reduced to 10 days, • 7-day time limit for the notification of the award is reduced to 3 days, • 15-day time limit for the application to the Authority is reduced to 10 days, • 45-day review period of the Authority is reduced to 30 days (10 days in 21 /(b) and (c)).
LEGISLATIVE CHANGES Changes Regarding the Improvement of the Complaint System • Provided that the complaints related with notification, pre-qualification or tender document are within the time limit for lodging a complaint to the contracting authority, it is regulated that complaints can be lodged, at the latest, 3 workdays before the contract or the deadline for tenders and that they are concluded by the contracting authorities before the contract or the deadline for tenders. • It is also clearly regulated that if there is an application made to the Authority, the contract cannot be signed before the final decision is made.
