Edition 04: 17 August 2015
Editorial Team:
Dr. E. Seyfi Moroğlu, LL.M., Işık Özdoğan, LL.M. and Bora İkiler, LL.M.
Principles for Public Procurement of Goods, Services and Constructions Associated With State Security and Intelligence Enter Into Effect

Specific principles and procedures have recently been published and entered into effect for procurements made within the scope of Article 3(b) of Public Procurement Law number 4734 (“Public Procurement Law”). These include (collectively described here as “the Principles and Procedures”):

– Principles and procedures prepared by the Court of Accounts and published in Official Gazette number 29437 on 6 August 2015 (“Court of Accounts’ Principles and Procedures”).

– Principles prepared by the Revenue Administration published in Official Gazette number 29424 on 24 July 2015 (“Revenue Administration’s Principles”).

 Article 3(b) of the Public Procurement Law states that (except for provisions related to prohibition and criminal matters) the Public Procurement Law will not apply to procurement of goods, services and works which the relevant ministry decides:

– Relate to defense, security or intelligence.

– Must be treated confidentially.

– Require special security measures during performance of the contract, pursuant to legislation.

– Involve cases in which the basic interests of the state’s security must be protected.

The Public Procurement Law contains fundamental general principles which must be applied in all cases. However, for procurements which fall within the categories noted above, the relevant parts of the Principles and Procedures must also apply in addition to general principles.

The Court of Accounts and Revenue Administration respectively prepared the Principles and Procedures based on Article 4 of the Public Procurement Law, which requires relevant institutions to prepare principles and procedures relating to Article 3(b). The Principles and Procedures also outline implementation and establishment details.

The main differences between the Principles and Procedures, compared to general procurement procedures under the Public Procurement Law are:

– The Court of Accounts must select either a negotiated or restricted procedure for public procurement of goods, services and constructions within the scope of the Court of Accounts’ Principles and Procedures (Article 6 of the Court of Accounts’ Principles and Procedures). However, the Revenue Administration must use a negotiated procedure for public procurement within the scope of the Revenue Administration’s Principles (Article 6 of the Revenue Administration’s Principles).

– Direct procurement can be made in certain circumstances. Direct procurement means there is no public announcement and the administrative and technical requirements and prices are negotiated (Article 9 of the Court of Accounts’ Principles and Procedures; Article 8 of the Revenue Administration’s Principles).

– Complaints can be made to the Court of Accounts about unlawful procedures or actions within the procurement process (Article 33 of the Court of Accounts Principles and Procedures). However, no appeals can be filed to the Public Procurement Authority regarding procurements made within the Court of Accounts’ Principles and Procedures.

– The Court of Accounts and the Revenue Administration will draft additional documents relating to supervision, inspection and acceptance. For matters which the Principles and Procedures do not specifically address, the Court of Accounts and the Revenue Administration must apply general provisions from the Public Procurement Law and the Public Procurement Contracts Law numbered 4753.

Please see this link for the full text of the Court of Accounts’ Decision accepted by General Assembly Resolution numbered 5391/1, including Principles and Procedures, and this link for full text of the Council of Ministers’ Decision accepted by Cabinet Decree 2015/7755, including the Principles (only available in Turkish).

Read More
Communiqué on Major Accident Prevention Policy Documents Enters Into Effect for Establishments With Low Hazardous Substance Levels

The Communiqué on Major Accident Prevention Policy Documents (“Communiqué”) entered into effect on 4 August 2015 when it was published in Official Gazette number 29435. It introduces formal and contextual requirements for major accident prevention policy (“MAPP”) documents which apply to establishments categorized in the lower tier for hazardous substance levels. The tier system is outlined in the Regulation on Prevention and Effect Control of Major Industrial Accidents published in Official Gazette number 28867 on 30 December 2013 (“Regulation”), which categorizes establishments into either the low or high tier.

Article 5 of the Communiqué requires operators of lower-tier establishments to:

– Issue a MAPP document containing the required content and format (or arrange for one to be issued).

– Add initials on each page of the MAPP document and their original or electronic signature on the last page (or have a proxy do this).

The Communiqué outlines mandatory content and components of MAPP documents for lower-tier establishments:

– Information about the establishment: Identifying information, such as the establishment’s commercial title, address, tax number etc.

– Purpose of the MAPP: The establishment must undertake that:

– A security management system (“SMS”) exists to prevent major industrial accidents, as well as minimize damage to humans and the environment.

– The SMS provides high, effective and continuous protection, with ensured continuity. 

– Policy principles: The establishment should:

– Express regulatory compliance and explain the relationship between the MAPP and SMS.

– State other management systems and/or international standards which are applied in the establishment, if any.

– Undertake that it has obtained and evaluated data regarding technological improvements, previous experiences within the establishment, as well as incidents with major accident potential that took place in other establishments. 

– SMS information: The establishment should provide detailed information about security management with regard to:

– The organization and personnel.

– Determining and evaluating major accident risks.

– Operation control.

– Change methods.

– Emergency planning.

– Performance monitoring.

– Supervision and examination.

The Communiqué was issued by the Ministry of Labor and Social Security and the Ministry of Environment and Urban Planning. Please see this link for the full text of the Communiqué (only available in Turkish).

Read More
New Regulation on Administrative and Clerkship Services Enters Into Effect

The Regulation on Implementation of Administrative and Clerkship Services in Regional Courts of Justice, Judicial Courts of First Instance and Chief Public Prosecutors’ Office (“Regulation”) has entered into effect. It was published in the Official Gazette on 6 August 2015 by the Ministry of Justice (“Ministry”), entering into effect the same day.

The Regulation outlines procedures and principles for administrative actions, as well as judicial and clerkship services for:

– Regional courts of justice: Including the Presidency, Board and Chambers, as well as the Chief Public Prosecutor’s office and Justice Commission.

– Judicial courts of first instance: Including the judiciary, Chief Public Prosecutor’s office and Justice Commission.

The Regulation outlines the procedures and principles regarding:

– Which records and files to keep.

– Administrative actions to make.

– Execution of clerkship services.

– Implementation of the UYAP Information System (the national judicial information system).

– Application of Civil Procedure Law numbered 6100.

Significant Provisions introduced by the Regulation include:

– During simplified proceedings, complaint and reply petitions can either be submitted as physical copies or by completing the complaint and reply petition forms which can be found on the UYAP Information System (Article 198 of the Regulation).

– A secure electronic signature is required to electronically submit complaint and reply petition forms. Otherwise, these forms must be completed electronically, then a physical copy must be printed and signed by hand.

– Provided the parties consent, the court can allow parties or their attorneys to attend hearings and take procedural actions from another location via SEGBIS (an audio and video information system) or a similar system which transmits audio and video (Article 218 of the Regulation).

– The court can allow a witness, expert witness, expert or party to be in another location when they are heard by the court, provided the parties consent. Audio and visual of the hearing must be simultaneously transmitted to the hearing room via SEGBIS, or a similar system.

– If the party who will take an oath resides somewhere besides where the courthouse is located, the oath can be taken via SEGBIS, or a similar system.

– All related persons who were present at a hearing must sign the minutes indicating the hearing has been held. The minutes can either be written electronically on the UYAP Information System (then signed via secure electronic signature) or written by hand if writing the minutes electronically is not possible (then physically signed). The minutes must include:

– Names and surnames of the persons who were heard.

– Names and surnames of people who were present.

– The hearing’s start and end time.

– Hearing duration.

– Evidence submitted during the hearing.

– Electronic minutes must be signed with secure electronic signatures and sent to the related authority via the UYAP Information System. Physical minutes must be scanned and then signed with a secure electronic signature, before being sent to the related authority via the UYAP Information System. Originals of the minutes must be kept on the premises.

– If the statements of parties who attended the hearing via SEGBIS or a similar system must be signed, the minutes must be printed and signed by the related parties. The signed minutes must be uploaded to the electronic environment. The originals of the signed minutes must be sent to the related court.

Please see this link for full text of the Regulation (only available in Turkish).

Read More
Rating Mechanism Introduced to Determine the Most Economically Advantageous Tenders For Public Procurement

The Public Procurement Authority has issued a communiqué and regulation outlining principles for determining the most economically advantageous tender where the lowest price is offered by more than one bidder. The communiqué amends Article 70 of the General Communiqué on Public Procurement (“Communiqué”), while the regulation amends Article 63 of the Regulation for Implementation of Service Procurement Tenders (“Regulation”). The communique and regulation were both published Official Gazette number 29428 on 28 July 2015.

Prior to the amendments, Article 63 of the Regulation outlined elimination criteria for public tenders. The amendments introduce a mechanism whereby bidders are rated against three criteria to determine the top two most economically advantageous tenders. If there are two or more bidders with the same rating, the first and second bidder will be decided by drawing lots.

If the bidder is a joint venture, all partners must meet the criteria. If the bidder submits a certificate of experience for a partner which holds more than 50% of shares, such partner will also be included in the evaluation.

The new rating mechanism considers:

Contracts executed in the last two years 

The price of the contracts executed under the Public Procurement Contracts Code numbered 4735 within two years of the tender’s announcement or invitation date will be taken into consideration. The bidder will be rated by comparing the total price of the contracts to the approximate cost of the current project (subject to tender). If the bidder is a joint venture, contracts executed by each partner will be taken into consideration, as well as contracts executed by their respective partners for whom certificates of experience have been submitted.

Registration with Chamber of Commerce and/or Industry or Relevant Trade Association 

The bidder will be granted one point if it has been registered for at least one year with a chamber of commerce, industry, or relevant trade association within the tendering authority’s administrative borders.

Due and prompt payment to employees

The bidder will be granted one point if the tendering authority has not detected any failure to duly and promptly pay employees during service procurement work undertaken for such authority within two years of the tender’s announcement or invitation date. A bidder will also be granted one point if it has not undertaken any service procurement work for the tendering authority during those two years.

Please refer to the links for the full text of the amendments made to the Communiqué and the Regulation (only available in Turkish).

Read More
2015-2018 Pharmaceutical Strategy and Action Plan Announced by Ministry of Science, Industry and Technology

A Strategy and Action Plan for the Pharmaceutical Sector has been adopted for the 2015-2018 period (“Action Plan”). It was prepared by the General Directorate of the Ministry of Science, Industry and Technology, with contributions from public and non-governmental organizations, as well as universities. The Action Plan is limited to pharmaceuticals for human use and sets goals for the period to support the local pharmaceutical sector to become more competitive globally.

The Action Plan envisages six strategic objectives and 36 specific actions, taking into account the key problems currently facing the pharmaceutical sector. The strategic objectives are to:

– Establish a qualified labour-force which meets sector requirements.

– Develop coordination and cooperation by establishing a transparent environment, based on trust between the public, universities, and private sector.

– Ensure rational use of pharmaceuticals by establishing informed doctors, dentists, pharmacist, nurses and consumers population.

– Plan R&D activities, ensure coordination for the development of high quality products and support products developed in this manner.

– Establish a rational financial structure which supports industry investments for the purpose of supporting sustainability and globalization of the sector. 

The Action Plan was announced in Official Gazette number 29440 on 9 August 2015. Please see this link for the full text (only available in Turkish). 

Read More
Comments Sought on Draft Communiqué for Electronic Notification of Documents Issued by Tax Authorities

The Revenue Administration (“Administration”) has published a Draft of General Communiqué on Tax Procedural Law (“Draft Communiqué”) on its website and seeks public comments. The Draft Communiqué proposes principles and procedures for electronic notification of documents issued by tax authorities according to Article 107/A of Tax Procedural Law numbered 213 (“Tax Procedural Law”).

According to the Draft Communiqué, electronically signed documents, which the Tax Procedural Law requires to be notified, would be served to a recipient’s electronic notification address via the electronic notification system from 1 January 2016. Electronically signed documents would be deemed to be duly served at the end of the fifth day after being sent to recipient’s electronic notification address.

Parties which the Draft Communiqué would require to use an electronic notification address (and be eligible to be electronically notified) are:

– Corporate taxpayers.

– Income taxpayers, with respect to commercial, agricultural and professional gain.

Other parties can also voluntarily ask to be notified electronically.

Corporate taxpayers must submit an Electronic Notification Request Application (“Application”) to the relevant tax authority before 1 January 2016. The Application must be delivered in person by the corporate taxpayer’s legal representative or someone appointed by a notarized power of attorney to perform transactions in relation to the electronic notification system. Corporate taxpayers incorporated after 1 January 2016 would be required to submit the Application within 15 days of incorporation.

Income taxpayers must submit an Application before 1 January 2016 by:

– Complete the Application electronically via the tax office website.

– Deliver the Application personally to the relevant tax authority or via someone who is appointed by a notarized power of attorney to perform transactions in relation to the electronic notification system.

After making an Application, taxpayers will receive a sealed envelope containing an Internet Tax Office user code, a password, and code.

Qualifying taxpayers must:

– Complete the Application accurately, completely and in a timely manner.

– Notify of changes to information already submitted. Notification must occur by the date of change at the latest.

– Conform to all Application terms.

– Maintain confidentiality of the user code, password and code, refraining from sharing these with third parties

– Immediately inform the tax authority if the user code, password or code is obtained by an unauthorized third party.

From 1 October 2015, electronic notifications can be sent to those who submitted their Application before this date. However, the electronic notification practice will apply to all relevant parties from 1 January 2016.

Failure to submit an Application will be subject to criminal sanctions (Duplicated Article 335, in accordance with Articles 148, 149 and Duplicated Article 257 of the Tax Procedural Law). Following a criminal sanction, an internet tax office account will be formed ex-officio for the offending party.

Opinions and proposals in relation to the Draft Communiqué can be sent to uygulama@gelirler.gov.tr.

Please see this link for the full text of the Draft Communiqué (only available in Turkish).

Read More