On 06 February 2014, Turkish Parliament has enacted a 6518
Omnibus Bill, gazetted February 19th 2014, which adjoins a
provision to article 3 of the Law No 4734 Public Procurement Law
("Law") stipulating that purchase of goods and services
provided to ensure innovation, local production and technology
transfer under offset/industrial participation programs are not
subject to Law No 4734.
Following to such a legal basis, the Regulation on the Purchase
of Goods and Services, With Reference to Article 3 (U) of Law No:
4734 ( the "Regulation" ) was issued by the Ministry of
Science, Industry and Technology and gazetted February 15th,
For some, this somehow might appear as a milestone to establish
an omitted national law from the scope of regular government
procurement policies and the multilateral trade agreements on the
way to become a member of The Agreement on Government Procurement
(GPA) of WTO. However, it seems that Turkey's inherited
practice of fast-tracking legislative issues such as offsets under
omnibus bills will result with the continuation of Turkey's
public procurement policies to come under fire in terms of
On the surface at least, the Regulation seems that it is in the
absence of terminological compliance to the basis clause, 3 (U) of
the Law, by having the expression of "industrial
collaboration" which is completely different from the
expression used in the Law.
The legal basis of the Regulation seems to become a highly
controversial topic as well. According to the article 124 of the
Turkish Constitution, The Prime Ministry, Ministries and the
Statutory Bodies may issue regulations indicating the
implementation of laws for the issues falling into their
responsibilities, as long as they do not conflict with laws. This
provision also relates to relationship of competency between
constitution, laws, statutory decrees, by-laws, regulations and the
other regulatory administrative acts and brings the questions
associated with the constitutionality of the Regulation to mind. In
other words if there is no purview of a law (ratio legis)
for implementation of certain issues, any exemption clause therein
does not form the legal basis for those issues.
Moreover the Regulation contains many inconsistencies. These
include the provisions related to procedures of implementation of
IP/O programs. To give an example, the Regulation prescribes IP/O
program methodology as the" tender to predetermined
bidder" in accordance to the Law which was exempting itself as
legal basis (!).
It is obvious that one of the areas that the strict principle of
legality of the administration needs to be applied is tender
process. It refers to a series of transactions which are organized,
managed and monitored by public authorities for purpose of purchase
of goods and services and requires complying with the rules of
procedure provided in legislation in a competitive environment.
Based on this, it would not be a surprise if Turkish Constitution
Court cancels the Regulation.
One of the other examples; pursuant to article 45 of the
Regulation, consultancy services for preparation of the documents,
to follow-up phases of the tender preparation and IP/O commitments
might be bought according to the provisions of Law No. 4734
provided that the approval of the tender officer. Having no idea
about the purpose of such a clause, such a referral requirement to
the Law in this clause leaves a question mark over minds.
The foremost inconsistency come to the fore with article 51
saying that "In the absence of provisions in this Regulation,
Law No: 4734, Law No: 4735 (Public Procurement Contracts Law) and
the relevant provisions of the public procurement legislation in
force issued by the Public Procurement Authority shall apply
Those all lead the questions related to one of the basic
principles of the rule of law which is "certainty".
According to this principle, the regulations should be clear,
understandable, enforceable, and objective and include preventive
measures for persons against arbitrary treatments of public
authorities. The principle of certainty is linked to the
"legal security" and the persons should know, within a
determined certainty, what concrete actions and which cases,
sanctions, or the results are led to the intervention of the
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