Türkçe
The Public Procurement Law No. 4734 determines the principles and procedures to be applied in the tenders to be made by public institutions and organizations that are subject to public law or under the control of the public or use public resources, and the principles and procedures for the preparation and implementation of contracts to be executed in accordance with such tenders are determined by the Public Procurement Contracts Law No. 4735.
In that respect; the provisions of Law No. 4735 are applied to all contracts concluded in accordance with the tenders carried out under Law No. 4734 and the obligations of the contractors within the scope of such contracts are performed in accordance with the mandatory provisions of this Law No. 4735 and related contract provisions.
Although the Turkish Code of Obligations is applied in cases where there is no regulation in the contract and public procurement legislation, the provisions of the Law No. 4735 are primarily taken into consideration. Accordingly; in order to determine whether the Coronavirus (COVID-19) epidemic will constitute a force majeure under the public procurement contracts and how to proceed in this case, it is necessary to examine the provisions of the relevant Law and the secondary legislation published in this direction.
WHAT ARE THE REGULATIONS INCLUDED UNDER LAW NO. 4735 WITH RESPECT TO FORCE MAJEURE?
In accordance with Article 10 of Law No. 4735;
“The below stated events are accepted as force majeure events:
a) Natural disasters.
b) Lawful strike.
c) Epidemics.
d) Partial or general mobilization.
e) Similar events which may be determined by the Public Procurement Authority, if needed.
In order for the aforementioned cases to be accepted as force majeure event by the administration, including the time extension and termination of the contract; the event in question should not be resulted from the default of the contractor, it should prevent the performance of the obligations of the contractor, the contractor should not be able to eliminate such obstacle, the contractor should notify the administration in writing within twenty days as from the occurrence of force majeure event and such event should be documented by the competent authorities.”
As can be seen; “epidemics” are accepted as a force majeure event under paragraph (c) of the above-mentioned article. In that respect; the contractor whose obligations under the contract is adversely affected due to Coronavirus (COVID-19) epidemic, should apply to the relevant administration in order to benefit from the force majeure provisions by documenting that the conditions stated under the above-mentioned article have been fulfilled. However, the obligations of the contractor under the contract will not automatically be eliminated with such application, and the force majeure procedures will merely be applied upon the confirmation of the administration that all the related conditions are satisfied as a result of the investigations to be made by the same.
DOES CORONAVIRUS (COVID-19) EPIDEMIC CONSTITUTE FORCE MAJEURE UNDER PUBLIC PROCUREMENT CONTRACTS?
In accordance with the Presidential Circular No. 2020/5, which came into force after being published in the Official Gazette No. 31087 dated 02.04.2020; the contractors who claim that it became temporarily or permanently, partially or wholly impossible for the same to perform their obligations under the public procurement contracts executed in relation with tenders made under Law No. 4734 due to the COVID-19 epidemic, will make an application to the contract party administration by documenting such impossibility.
These applications of the contractors will be reviewed by the related administrations in accordance with the provisions of Article 10 of Law No. 4735 and other related legislative provisions. With the above-mentioned Circular, administrations are required to obtain the assessment of the Ministry of Treasury and Finance before rendering a decision on this matter.
If, as a result of this assessments made by the administrations, it is determined that the event in question is not resulted from the default of the contractor, it prevents the performance of the obligations of the contractor and the contractor is not able to eliminate such obstacle, then a time extension may be granted or the contract may be terminated accordingly.
Although “epidemics” are accepted as one of the force majeure events under Article 10 of Law No. 4735, it is also clearly stated under the relevant Circular that the current Coronavirus (COVID-19) epidemic is a force majeure event, in order to prevent discussions in that respect.
However, as can be understood from the conditions indicated under the Circular; despite of the fact that the existence of the epidemic within Turkey will be regarded as force majeure event, merely such existence shall not release the contractors from performing their obligations under the contracts and an investigation will be made to determine whether such force majeure event prevents the performance of the obligations of such contractor. Due to the nature of the force majeure claims; in order for a party to refrain from performance of its obligations under a contract, the related force majeure event should make it impossible for such party to perform its obligations under the contract.
Therefore; although the contractors, who claim that the performance of their obligations are prevented or became impossible due to the coronavirus (COVID-19) epidemic, may make an application to the related administration, such application will not automatically result in the postponement of the obligations of contractors and the decision of the relevant administration will be determinant for the implementation of the related force majeure procedures.
ERKUT LAW OFFICE
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