Ⅰ. Introduction
Public procurement is an important managerial function that regulates the procurement of goods and services by public institutions and aims to ensure the efficient use of public resources. Ensuring that these processes are transparent, competitive and accountable is of crucial importance not only in terms of fiscal discipline, but also in terms of building public trust. In Turkey, one of the most important innovations to increase the transparency of tenders conducted under the Public Procurement Law No. 4734 ("PPL") is the transition to an electronic procurement system through the Electronic Public Procurement Platform (EKAP). This article aims to examine in detail the principle of transparency in public procurement and the effects of the electronic procurement system under Turkish law.
ⅠⅠ. Principle of Transparency in Public Procurement
In public administration, transparency refers to ensuring that decision-making processes and practices are clear, understandable and accessible to all. The principle of transparency in public procurement ensures equal access to information for all participants at every stage of the procurement process and the effectiveness of audit mechanisms. Transparency is vital for increasing competition, preventing waste of resources and preventing corruption.
While transparency increases the accountability of public authorities, it also increases participation in tenders by promoting competition. Ensuring transparency is a state obligation under both national legislation and international conventions.
Article 5 of the PPL establishes as a fundamental principle that public procurement shall be conducted in accordance with the principle of transparency. Pursuant to this article, the principles of equal treatment, competition, accountability and transparency are taken as basis in the organization of tenders. Therefore, any violation of these principles in the conduct of public tenders constitutes a violation of the law. The following regulations are prominent in the legislation to ensure transparency and competition;
- Procurement Announcements: Tenders must be announced openly and in advance. Announcements are published in the Public Procurement Bulletin and on the Electronic Public Procurement Platform (EKAP).
- Equal Treatment Principle: It is essential that participants are treated equally and fairly in the tender process and that discrimination is avoided (Article 5 of the PPL).
- Confidentiality of Bids: The confidentiality of the bids submitted by the participants is protected, thus securing a competitive environment.
- Transparent Disclosure: Tender results are publicly announced and interested parties are informed.
ⅠⅠⅠ. Transition to Electronic Procurement System (EKAP)
The Electronic Public Procurement Platform (EKAP) is one of the most significant tools of digitalization in public procurement in Turkey. The electronic procurement system, introduced by the additional regulations of the PPL, aims to speed up procurement processes and make them more secure. The electronic procurement system offers the opportunity to carry out all processes from the publication of tender notices to the receipt and evaluation of bids and the announcement of the results in a digital environment.
Articles 62 and 65 of the PPL set out the principles for the implementation of EKAP. Article 62 of the PPL contains regulations on the functioning of the electronic procurement system, while Article 65 provides clarifications on the validity of transactions conducted electronically. Moreover, detailed regulations on the management of these processes are supported by regulations and notifications issued by the Public Procurement Authority.
- Article 62 of Act No. 4734 sets out the digital tools that can be used in the procurement process and how these tools can facilitate the process.
- Article 65 explains the use of EKAP and the validity of transactions conducted electronically.
In this context, the ability to monitor, audit and digitally record each stage of tenders facilitates the detection of irregularities and increases the credibility of the process.
Ⅳ. Impact of Transition to Electronic Procurement System on Transparency
Traceability and Auditability in Procurement Processes: The electronic procurement system offers a high level of traceability and auditability at every stage of the procurement process. Transactions conducted through EKAP are recorded on the system and allow for retrospective review when necessary. This facilitates the audit of public procurement transactions and increases accountability to the public.
Increasing Competition: EKAP encourages more bidders to participate in tenders by ensuring that tender notices reach a wide audience. By enabling more firms to compete at local and national level, the electronic procurement system contributes to lower costs and higher quality standards in public procurement. Increased competition also helps to strengthen the principle of transparency.
Prevention of Irregularities: The electronic procurement system minimizes errors and irregularities that may arise from human factors. Since the digitalization of the procurement process is transparent, it is easier to detect and prevent negative situations such as favoritism or corruption. In this context, EKAP stands out as a mechanism to increase reliability in public procurement.
Public Disclosure: All stages of tenders can be monitored electronically and tender results are made public.
Cost and Time Savings: Digitalization of paperwork reduces operational costs for both participants and contracting authorities. Thanks to EKAP, procurement processes are carried out faster and more efficiently than traditional methods. Electronic transactions save time and costs. This contributes to more efficient use of public resources.
Comprehensive Database: EKAP provides an extensive database on procurement processes and is an important resource for researchers and public authorities. Data analysis capabilities allow for more reliable and scientific evaluations of public procurement.
Ⅴ. Legal Disputes That May Arise Under Electronic Procurement
Since public procurement is a critical area in terms of the management of public resources and the delivery of public services, disputes arising in this process are usually subject to administrative litigation processes and it is possible for individuals (bidders, public institutions) to file lawsuits against the actions taken by the public administration.
Bidders will be entitled to file a lawsuit if the principle of transparency in public procurement is violated, if there is inequality in access to information in the procurement process, or if there is arbitrary behavior in the evaluation of bids. For example, insufficient widespread publication of tender notices or ambiguous tender specifications are considered grounds for annulment.
Another issue is that, despite the reliability of the electronic procurement system, irregularities in the system (e.g. bidding with forged documents) or allegations of corruption can lead to litigation. In such cases, the firms concerned have the possibility to seek legal remedies.
Violations of the principle of equal treatment in public procurement may lead to objection and annulment proceedings in cases where some tenderers are granted privileges or certain tenderers are unfairly excluded. For example, unnecessary questioning of a tenderer's qualification documents or the evaluation of a tenderer with different criteria may be considered a violation of the principle of equal treatment.
In such cases, an annulment action may be filed for the annulment of the decisions taken by the tender commission regarding the tender (announcements regarding the tender process, rejection of bids, tender results, etc.), and a full remedy action may be filed if the tenderer suffers damage due to the unlawfulness of the public administration's actions.
For example, while situations such as the invalidation of a bidder's bid, objection of other bidders to the results of the tender may be subject to annulment proceedings, a full remedy action may be filed by bidders who are unfairly excluded from the tender or whose right to participate in the tender is violated.
Ⅵ. Conclusion
The electronic procurement system in Turkey was launched in 2009 and has been developed over the years. However, some innovations are needed to make the system more effective and widespread. In particular, strengthening the technical infrastructure of the system and training users will contribute to more effective use of the electronic procurement system. Moreover, new regulations may be introduced to encourage transparency and competition in order to increase participation in public tenders.
Transparency in public procurement is critical for the efficient use of public resources and the fight against corruption, as well as for the credibility of the state and public confidence. The transition to an electronic procurement system in Turkey has greatly contributed to increasing transparency, auditability and competition in procurement processes. Tenders conducted through EKAP allow for faster, more secure and transparent procurement processes. However, further development and expansion of the system across all public institutions is essential to ensure full transparency in public procurement. Therefore, future steps will improve the efficiency of public procurement processes and reinforce public confidence in public administration.
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