Public procurement in Turkey is regulated by the Law on Public Procurement No. 4734 (hereinafter – the Law), which entered into force on January 1, 2003.
Since June 1, 2019, public procurement in Turkey has been carried out exclusively in electronic format, through the Electronic Public Procurement Platform (EKAP) (https://ekap.kik.gov.tr).
Turkey has been a member of the WTO since 1995 and since 1996 has had an observer status under the WTO Agreement on Government Procurement.
At the same time, foreign suppliers are allowed to participate in Turkish public procurement.
At the same time, it should be borne in mind that the Law provides for the possibility of granting a 15% conditional discount for domestic suppliers.
Pursuant to Article 10 of the Law, tenderers may be required to submit the following information and documents for assessment of their economic, financial, professional and technical qualifications:
I) for assessment of economic and financial potential:
1) bank statements concerning financial situation of the tenderer,
2) a balance sheet of the tender participant, which must be published in accordance with the relevant laws, or the necessary sections of the balance sheet, in the absence of thereof, equivalent documents,
3) a report on the total turnover of the tenderer or documents indicating the scope of work carried out and performed by the tenderer in relation to the subject of procurement procedures.
II) for assessment of professional and technical qualifications:
1) documents confirming that the tenderer acts as a registered member of the relevant chamber in accordance with applicable laws and has the legal right to submit bids,
2) in relation to the subject of procurement or similar work undertaken by a tenderer under a contract of value in the public or private sector;
a) documents confirming work experience under work contracts, the preliminary acceptance procedures of which have been completed, and contracts for the provision of services related to construction work, the acceptance procedures of which have been completed within the last 15 years
b) documents confirming work experience under contractor agreements, the preliminary procedures for the acceptance of which have been completed, and contracts for the provision of services related to construction work, the procedures for the acceptance of which have been completed, the supervision of which is carried out or is managed, at least 80% from the value of the contract within the last fifteen years,
c) proof of experience for valid contracts for works and contracts for provision of services related to contracts for work that have been performed flawlessly, monitored and managed for at least 80% of the total contract value over the past fifteen years, provided that the original value of the contract has been completed,
d) documents confirming the experience in conclusion of contracts for goods and services over the past five years,
e) for transferred contracts: documents confirming work experience under construction contracts, the preliminary acceptance procedures of which and contracts for the provision of services are related to construction works, the acceptance procedures of which have been completed within the last fifteen years, and in contracts for goods and services, the acceptance procedure which has been completed within the last five years, provided that at least 80% of the contract value has been fulfilled,
3) documents related to production and/or production facilities, research activities and quality assurance practices of the applicant,
4) information and/or documents related to the organizational structure of the applicant, confirming that he/she is hiring or will hire a sufficient number of personnel to carry out the subject matter of the procurement process,
5) in the case of procurement of services or works – documents demonstrating educational and professional qualities of the management team and technical personnel of the tenderer,
6) documents related to facilities, machines, instruments and other equipment necessary for the performance of works that are the subject matter of the procurement contract,
7) documents related to technical personnel or technical institutions responsible for quality control, whether they are attached directly to the tenderer or not,
8) certificates issued by quality control bodies accredited in accordance with international rules, confirming compliance of the work in question with the standards specified in the tender documents,
9) if requested by the contracting authority for confirmation of their accuracy, samples, catalogs and/or photographs of the supplied goods.
The procedures and principles for registering foreign individuals and legal entities in EKAP are determined by the decision of the Public Procurement Council 2018 / DK.D-357.[1]
This decision determines that:
– In the process of registration of foreign individuals or legal entities with EKAP, identity confirmation of foreign individuals or legal entities can be performed using either a foreign identification number or a potential tax identification number, whichever is relevant; a foreign identification number can be obtained from the General Directorate of Civil Registration and Citizenship, anda potential tax identification number can be obtained from the tax authorities.
– Registration with EKAP can be carried out by means of provision by these persons of documents issued in accordance with their own national laws, which are equivalent to those specified in article 7 of the Regulation on electronic procurement.
The second paragraph of Article 7 of the Regulation on electronic procurement, regarding registration in the electronic public procurement platform (EKAP) of individuals and legal entities who will participate in the procurement procedures, provides:[2]
“As an addition to the protocol for registration with EKAP, the following documents and information must be submitted to the Public Procurement Authority:
a) for individuals:
1) The original or notarized copy of the document demonstrating admission to the chamber, which shall be obtained in the same year as the registration of the minutes, and taken from the chamber of commerce and/or industry or from the chamber of merchants and artisans or the corresponding professional chamber to which he/she is admitted,
2) Notarized signature form,
3) If the minutes are signed by a representative, then a notarized power of attorney, as well as a notarized sample of the representative’s signature,
4) A notarized power of attorney and a notarized sample of the signature of persons authorized to conclude transactions using an electronic signature on behalf of an individual.
b) for legal entities:
1) An original or notarized copy of a document demonstrating that the legal entity is registered with the Chamber, which shall be obtained in the same year as the registration of the minutes, and taken from the Chamber of Commerce and/or the industry in which it is registered in accordance with the relevant laws,
2) A notarized list of trusted signatures of a legal entity,
3) If the minutes are signed by a representative, then a notarized power of attorney, as well as a notarized sample of the representative’s signature,
4) A notarized power of attorney and a notarized sample of signatures of persons authorized to conclude transactions using electronic signatures on behalf of a legal entity.
At the same time, it should be noted that due to the changes in the Law in 2017, registration with the Chamber of Commerce and Industry or the Professional Chamber is no longer requested at the tender stage. However, the tender commission asks the winner to provide these documents before signing the contract. Therefore, registration must be done before the closing date of the tender.
In addition, at the tender stage, companies shall provide their official income balances and do not need to provide bank reference letters. Instead, winners shall submit bank recommendation letters / guarantees prior to signing the contract (within 10 days from the date the winner is determined, an additional 12 days are given if a foreign person is identified as the winner).
According to Article 33 of the Law, during procurement, collateral shall be provided in the amount determined by the tender participant, not less than 3% of the offer price. In consulting services, it is not necessary to require a tender security if it is specified in the tender documents.
The following are accepted as security for the tender:
a) Turkish lira,
b) letters of guarantee from banks and special financial institutions,
c) internal borrowings issued by the Deputy Minister of Finance and documents prepared for substitution of these accounts,
Letters of guarantee, which may be issued by foreign banks that are allowed to operate in Turkey in accordance with the relevant laws, and letters of guarantee, which may be provided by banks or special financial institutions operating in Turkey, under counter guarantees provided by banks or similar creditors exercising activities abroad must also be accepted as a tender security.
As soon as the company receives the contract, the tenderer becomes the contractor and must provide a performance guarantee (article 43 of the Law), which is usually 6% of the contract value and is valid for the entire delivery or upon final acceptance from the date of the contract. All bonds must be issued by a Turkish bank and counter-guaranteed (confirmed) by the trading participant’s bank.
Steps to register with EKAP:
1) Obtain a foreign identification number or potential tax identification number.
2) Fill in the protocol on EKAP and sign by authorized persons.
3) Attach the necessary documents specified in Article 7 of the Regulation on electronic procurement.
4) Send the minutes to the Public Procurement Authority with the necessary documents.
5) Wait for approval. Once registration is complete, an activation email will be sent to you. It is recommended to apply for registration earlier, due to the time required for collection of the necessary documents and their verification by the Public Procurement Authority.
EKAP – Electronic Public Procurement Platform
[1]https://www.ihaledanismanligi.com.tr/2019/02/20/registration-of-foreign-natural-and-legal-persons-on-electronic-public-procurement-platform-ekap/
[2]https://ekap.kik.gov.tr/ekap/DuyuruDetay.aspx?duyuruID=3df8a5bb5bc4e217d05d7de2ea71c4d0565e8a680ad3a5ada9bac92a02d92687