Public Procurement Conference BRNO, Czech Republic - PowerPoint PPT Presentation

1 / 40
About This Presentation
Title:

Public Procurement Conference BRNO, Czech Republic

Description:

... loss or damage resulting from an alleged breach of such duty, can demand review. ... complaints made after signing of the contract shall not be taken into ... – PowerPoint PPT presentation

Number of Views:39
Avg rating:3.0/5.0
Slides: 41
Provided by: Kay137
Category:

less

Transcript and Presenter's Notes

Title: Public Procurement Conference BRNO, Czech Republic


1
PUBLIC PROCUREMENT REVIEW PROCEDURE IN
TURKEY Sakire Kural Chief Legal Adviser Public
Procurement Authority The Republic of TURKEY
Public Procurement Conference BRNO, Czech
Republic 26-27 November, 2007
2
LEGISLATIVE FRAMEWORK
  • The public procurement regime in Turkey is
    regulated by two separate laws
  • No. 4734 of 4 January 2002 Public Procurement
    Law
  • (PPL - published in the Official Journal 22
    January 2002)
  • No. 4735 of 5 January 2002 Law on Public
    Procurement Contracts (LPPC - published in the
    Official Journal 22 January 2002

2
3
REFORMING THE PUBLIC PROCUREMENT SYSTEM IN
TURKEY
  • Turkeys candidacy to the European Union
  • Under the structural reforms efforts with World
    Bank (WB) and the International Monetary Fund
    (IMF)
  • Public procurement law much more based on
    UNCITRAL and EU Directives.

3
4
STRUCTURE OF PP LAW
  • The PPL covers all stages of procurement
    procedure, except the execution (and termination)
    of contracts, which is covered exclusively by the
    LPPC.
  • Moreover, the PPL defines the procurement
    procedures and describes in a detailed manner all
    steps to be taken in the course of the
    proceedings.
  • The PPL also establishes an institution to
    regulate procurement matters (Public Procurement
    Authority).
  • The PPL grants to tenderers the right to appeal,
    and the proper review procedures are defined.
  • The PPL provides some penal provisions.

4
5
STRUCTURE OF PP LAW REVIEW PROCEDURE
  • General Framework
  • Basic principles concerning settlement of
    disputes in public procurement exist in Public
    Procurement Law No 4734 (PPL).
  • In accordance with Art. 81 of 2004/18/EC European
    Union Council Directive, an independent
    administrative body with expertise in public
    procurement has been established in Turkey.

5
6
PUBLIC PROCUREMENT AUTHORITY
  • PPA is composed of
  • the Presidency,
  • the Public Procurement Board (PPB),
  • the Service Units.
  • Duties of this Authority can be summarized as
  • To publish the Public Procurement Bulletin
  • To resolve complaints
  • To identify any discriminatory action against
    Turkish economic operators in foregin contract
    awards and to furnish proposals to the Council of
    Ministers in reciprocity
  • To prepare, develop and guide the implementation
  • To provide training for public and private sector
  • To compile and publish statistics, to keep the
    records of prohibited tenderers.

6
7
REVIEW PROCEDURE
  • Legal Framework
  • The related provisions in PPL regarding review
    for complaint procedures are as follows
  • Article 53
  • Article 54
  • Article 55
  • Article 56
  • Article 57

7
8
REVIEW PROCEDURE
  • Secondary Legislation
  • Regulation on Administrative Applications Against
    Procurements
  • Communiqué on Administrative Applications Against
    Procurements
  • Regulatory Decisions of the Board

8
9
REVIEW PROCEDURE
  • Review Procedure
  • review by the contracting entity
  • review by PPA
  • judicial review

9
10
REVIEW PROCEDURE
  • All alleged breaches with regard to the tender
    proceeding of public procurement under the scope
    of the Law regardless of the estimated cost are
    subject to review for procedure by PPA.

10
11
REVIEW PROCEDURE
  • Administrative Acts Subject to Review
  • All administrative acts by the contracting
    entity, especially, finalized tender decision
    shall be subject to review.

11
12
REVIEW PROCEDURE
  • Notification of the Finalized Tender Decisions
  • Another important aspect of the system is the
    establishment of a mechanism for notification of
    finalized tender decisions as in the EU, as well
    as the existence of an authority to which the
    complaints are submitted.

12
13
REVIEW PROCEDURE
  • Tender decisions shall be acknowledged to all
    tenderers who have submitted an offer, including
    the tenderer awarded, in return of signature or
    by means of registered mail sent to the
    notification addresses of all tenderers within
    maximum three days following the day of decision
    approval by the contracting officer.
  • In cases where the tender decisions are cancelled
    by the contracting officer, the tenderers shall
    be likewise notified.

13
14
REVIEW PROCEDURE
Competence of Complaint Any contractor,
supplier or service provider who claims that s/he
has suffered a loss of rights or suffered or is
likely to suffer loss or damage resulting from an
alleged breach of such duty, can demand review.
14
15
REVIEW PROCEDURE
  • Regulation on Administrative Applications Against
    Procurements
  • Establishes the rules and principles within the
    scope of the PPL for review of the complaints,
    conclusion of review procedures and
    implementation of resolutions. In line with the
    administrative applications
  • candidate Natural or legal persons or their
    joint ventures applying for pre-qualification
  • tenderer The supplier, service provider or
    works contractor bidding for contracts of goods,
    services or works

15
16
REVIEW PROCEDURE
  • Regulation on Administrative Applications Against
    Procurements
  • The scope of Article 3 has been expanded to
    cover
  • the persons who have the competence of being
    tenderer...

16
17
REVIEW PROCEDURE
  • Review Procedure
  • complaint to contracting entities
  • objecting complaint to PPA
  • judicial review on decision made by PPB

17
18
REVIEW PROCEDURE
  • Complaint to Contracting Entity
  • tenderers have the right to complain directly to
    the contracting entity against the finalized
    tender decision
  • request an explanation
  • written complaint to contracting entity
  • The scope of a complaint to the contracting
    entity may cover notice, all infringements
    related to tender procedures including
    procurement documents.

18
19
REVIEW PROCEDURE
  • Who claims that s/he has suffered a loss of
    rights or damage or s/he is likely to suffer loss
    or damage
  • candidates and tenderers may complain, in
    relation to all proceedings and actions in the
    procurement process
  • those that can be tenderers may complain, only in
    relation to the matters provided in the
    procurement announcement and the procurement and
    prequalification documents, and the conflicts
    between such matters and the administrative
    practices

19
20
REVIEW PROCEDURE
  • Time Limits of the Review for Complaints to the
    Contracting Entity
  • no procurement contract has been signed
  • complaint is submitted within 15 days after the
    notification of finalised tender decision

20
21
REVIEW PROCEDURE
  • The formal requirements of the review for
    complaint to the contracting entity
  • complaints shall be accepted provided that the
    formal requirements of the review for complaint
    to the contracting entity are met
  • application of complaints to the contracting
    entity is not subject to any charge or fee

21
22
REVIEW PROCEDURE
  • Decisions Made by Contracting Entity upon a
    Complaint
  • decision to finalize the complaint
  • decision to continue the tender proceedings

22
23
REVIEW PROCEDURE
  • Decision to Finalize the Complaint
  • The Contracting Entity may take any of the
    following decisions as a result of review within
    thirty days
  • determining the corrective action
  • cancelling the procurement proceedings
  • disapproving the application for complaint
  • The decision shall be notified to all tenderers
    within 7 days following the date of the decision.

23
24
REVIEW PROCEDURE
  • Decision to Continue the Tender Proceedings
  • Following the submission of a complaint, the
    contracting entity shall be prohibited from
    signing a contract unless the contracting officer
    certifies that urgency and public interest
    considerations require the tender proceedings to
    continue. Otherwise the tender decision and the
    contract shall be rendered null and void.

24
25
REVIEW PROCEDURE
  • Objecting Complaints to Public Procurement
    Authority
  • In order to carry out the duties assigned with
    PPL, PPA evaluates and concludes any complaints
    claiming that the transactions carried out by the
    contracting entity until the signing of the
    contract are in violation of this Law and the
    related legislative provisions.
  • Applications made to the PPA can be submitted in
    two ways
  • objecting complaint
  • reviews through claims

25
26
REVIEW PROCEDURE
Provided that the contracting entity has been
notified by the contractor, supplier or service
provider of all alleged breaches are requested to
be remedied, a complaint may be submitted to the
Authority prior to the signing of the contract.
26
27
REVIEW PROCEDURE
  • Time Limit and Formal Requirements
  • In cases where no decision can be made within
    thirty days or the decision taken, is found
    unacceptable by the tenderer the contractor,
    supplier or service provider can request PPA to
    review the case at the end of decision period or
    fifteen days after the decision date.
  • If the contracting entity notifies the
    contractor, supplier and service provider that
    the tender proceedings may continue and the
    contract may be signed, then the contractor,
    supplier and service provider may request a
    review to be undertaken by PPA, within at least
    three days, following the date of the
    aforementioned notification.
  • Objecting complaints made after signing of the
    contract shall not be taken into account by the
    Board.

27
28
REVIEW PROCEDURE
  • Application Fee for Objecting Complaint
  • The applicant shall deposit 285 YTL
    (approximately 160 ) as application fee for
    review to PPA.

28
29
REVIEW PROCEDURE
  • Time Limits and the Category of the Decisions by
    the Public Procurement Board (PPB)
  • Decisions of PPB fall into two categories
  • temporary decision as interim measure
  • ( tender proceeding would continue whether or
    not)
  • final decision
  • (within 45 days following the date of application)

29
30
REVIEW PROCEDURE
  • Effects of the Temporary Decisions
  • Made by the PPB
  • Contracting entity is liable to conduct the
    proceedings and actions required by the decision
    of the Board to such extent to cause any change
    to the legal condition immediately.
  • Final decision of the board shall be waited, and
    the requirements of such resolution shall be
    fulfilled except for signing the contract.

30
31
REVIEW PROCEDURE
  • Final Decision Made by the PPB on Objecting
    Complaint
  • Provided that it specifies the reasons and
    grounds relating to the complaints submitted to
    the Authority, the Board
  • determines the corrective operation
  • termination of the procurement proceedings
  • decides that complaint is irrelevant

31
32
REVIEW PROCEDURE
Effects of the Final Decision Made by the PPB
Contracting entity is liable to conduct the
proceedings and actions required by decisions of
the Board to such extent to cause any change to
the legal condition immediately.
32
33
REVIEW PROCEDURE
  • Review through claims of violation by the PPB
  • PPA may, if deems necessary, review and bring to
    conclusion any claims of violation of PPL and the
    related legislative provisions.

33
34
REVIEW PROCEDURE
  • Decisions Taken upon Claims of Violation by PPB
  • As a result of review through claims, either of
    the following decisions shall be taken
  • the claims being disapproved
  • determines the corrective operation
  • termination of the procurement proceedings

34
35
REVIEW PROCEDURE
  • Notification and Publication of the PPBs
    Decision
  • All decisions of the PPB shall be notified to the
    parties within five days following such
    decisions dates.
  • PPA shall also have these decisions, published in
    the Official Gazette.

35
36
REVIEW PROCEDURE
  • Notification to Public Prosecution and Listening
    to the Parties by PPA
  • The Board may listen to the parties. But
    inclusion of parties in investigation procedure
    consists of only listening to the parties when
    deemed necessary, and to request documents and
    information from contracting entity.
  • The Board, if deemed necessary, may resolve on
    informing the contract entities to be designated
    and/or proclaiming the acts of crimes to the
    public prosecution offices for further actions in
    administrative and/or penal aspects in relation
    to the acts that are found to be contrary.

36
37
REVIEW PROCEDURE
  • Compensation of Loss
  • no provision exists in PPL regarding the loss
    compensation
  • requests on compensation of losses in public
    procurements shall be made to the court
  • requests for compensation of losses may be
    relevant to losses arising from the cost of
    tender preparing, or relevant to depriving of
    profits due to the decision taken as well.

37
38
REVIEW PROCEDURE
  • Judicial Review of Decisions Made by PPB
  • The final decisions made by the PPB with regard
    to the complaints shall be under the jurisdiction
    of the courts.
  • In this stage, the legal procedure is subject to
    general rules of administrative law.

38
39
REVIEW PROCEDURE
  • THE AUTHORITY HAS DECLARED
  • 700 interim decisions and 897 final decisions on
    complaints in 2003
  • 1.148 interim decisions and 1.892 final decisions
    on complaints in 2004
  • 1.196 interim decisions and 2469 final decisions
    on complaints in 2005
  • 1767 interim decisions and 3348 final decisions
    on complaints in 2006
  • 1126 interim decisions and 2288 final decisions
    on complaints in first half of 2007

39
40
THANK YOU FOR YOUR ATTENTION
Sakire KURAL Chief Legal Adviser Public
Procurement Authority, TURKEY
Write a Comment
User Comments (0)
About PowerShow.com