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Regulation on Implementation of Goods Procurement
« on: May 20, 2009, 09:31:08 PM »
REGULATION ON IMPLEMENTATION OF
GOODS PROCUREMENT


CHAPTER ONE
General Provisions

SECTION ONE
Implementation Principles

Purpose and Scope
Article 1- This Regulation hereby has been prepared to govern the principles and procedures to be applied by the contracting entities within the scope of Public Procurement No:4734, dated 04/01/2002 in the goods tenders.

This Regulation enacted in relation to the implementation of Public Procurement Law No: 4734 and Public  Procurement  Contracts Law No: 4735 is integral with annexes hereto.

Legal Basis
Article 2- This Regulation has been prepared on the basis of Article 53 of Public  Procurement  Law No: 4734.

Definitions
Article 3- The following definitions shall be applicable in the implementation of this Regulation other than the ones set forth in Article 4 of Law No:4734:

Threshold Value: (Amended: 08/06/2004 – 25486 Official Gazette/ Art. 1) Refers to the monetary limites defined under Article 8 of Law No:4734 and updated under Article 67 of the same Law for use in the application of the provisions concerning the tender notice periods and rules as well as the participation of domestic tenderers solely in tenders or application of price advantage in favor of the domestic tenderers in the tenders;

Similar Work: Refers to the works that are similar in respect of quality and size with the goods, which constitute the subject matter of tender, and that require the same or similar production procedures and techniques, and that have similar properties with respect to plants, equipment, financial power, expertise, personnel and organization;

Work Experience Certificate: Refers to the work completion certificate that provides the experience in the work, which constitutes the subject matter of the tender, or similar works and that are issued, given and evaluated according to the principles and procedures set forth in this Regulation;

Specific Production: Refers to the works that are not readily available in the market, and that shall be produced upon design or a demand, and that requires specific expertise and production technique;

   Estimated Cost: Refers to the anticipated cost of the goods, which constitute the subject matter of tender, and which is calculated with any kind of price inquiry before holding the tender exclusive of value added tax and which is indicated in an estimation schedule with the bases thereto, and which are not specified in the tender and prequalification proclamations, and which are not released to the tenderers or other persons that do not have an official relation with the tender process;

Alternative tender: Refers to the alternative tender submitted besides the actual tender in respect of the products that have different specifications though meeting the minimum specifications and requirements set forth in the technical specification of the goods, which constitute the subject matter of tender, by the same tenderer in a tender if there is such a provision in the tender document;

Partial tender: Refers to submitting tenders for the whole or some items of the goods, which constitute the subject matter of the tender, when the tender consists of multiple items, and if the tender relates to single good, submitting tenders for some items or parts thereof in the tenders where it is allowed to divide the work in parts meeting different requirements and to submit tenders for the whole or some part(s) of the goods, which constitute the subject matter of the tender so that the contracting entities ensure participation in tender, competition, provision of needs at appropriate conditions and in a timely manner and efficient use of resources in the tenders where the unit price tender and contract procedure is applicable.

Basic Principles
Article 4- (Amended: 08/06/2004 – 25486 Official Gazette / Art. 2) The Contracting Entities shall be obliged to ensure transparency, competition, equal treatment, reliability, confidentiality, supervision by public opinion, and that the needs are met at appropriate conditions and in a timely manner, and that the resources are efficiently used.

The goods tenders, services tenders and works tenders may not be held as long as there is not an acceptable inherent relation among them.

The goods tenders cannot be divided in parts so as to be less than the threshold values or the monetary limits or in order not to implement the other provisions set forth in this Regulation.

Open procedure and restricted procedure constitute basic procedures in the tenders. Negotiated procedure and direct tender are only possible in the specific cases provided in the Law.

The proclamation or solicitation cannot be made before preparation of the tender document in the tenders with open and negotiated procedure, and of the prequalification and tender document in the tenders with restricted procedure.

The tender shall not be opened for any work without any appropriation. However, the tender may be opened before the expiry of the previous fiscal year for the continuous goods tenders, which can be realized in the next fiscal year.

Without confirmation approval of Public Procurement Board, the annual total of the expenditures under paragraph (f) of Article 21 and paragraph (d) of Article 22 of Law No: 4734 may not exceed 10% of the appropriations to be allocated for goods tenders of the contracting entities. The contracting entities shall take into account the total amount of appropriations allocated and determined in the annual budgets for the goods tenders to be made as per (in accordance with) this Law in respect of the goods tenders to be made within the monetary limits included in the said articles.

EIA approval certificate is a must for holding the tender of works requiring the Environmental Impact Assessment (EIA) report as per (in accordance with) the pertinent legislation.

It is an obligatory condition to have an EIA approval certificate in order to effectuate the tender where the relevant legislation requires the Environmental Impact Assessment (EIA) report.

Domestic Tenderer
   Article 5- Domestic tenderer refers to the real personsthat are the citizens of the Republic of Turkey and the legal persons incorporated under the laws of the Republic of Turkey.

   In order to be assumed as domestic tenderers, the real persons shall submit the copy of identity card evidencing the citizenship to the Republic of Turkey, and the legal persons  shall submit the documents evidencing incorporation under the laws of the Republic of Turkey.

The following documents shall be provided to evidence incorporation of the tenderers having the capacity of legal entity under the laws of the Republic of Turkey:
a) Trade registers gazette or the certificate issued by the associated trade registers office indicating the principal office of the company in respect of the companies;
b) Certificate of receipt issued by the relevant governmental office in respect of the Associations;
c) Copy of the register extract or the Official Gazette released to evidence registration to the central register kept by the General Directorate of Foundations in respect of the Foundations;
d) Certificate issued by the relevant ministry in respect of the Cooperatives;
e) Certificate issued by the relevant authorities in respect of other corporate bodies.

These requirements shall be applicable for each partner comprising the joint venture separately.

(Amended: 08/06/2004 – 25486 Official Gazette/ Art. 3) The Contracting Entities shall be obliged to require the documents listed above from the candidates or tenderers in relation to being a domestic tenderer in the tenders, in which it is specified that only the domestic tenderers can participate and the price advantage shall be applied in favor of the domestic tenderers.


SECTION TWO
Estimated Cost

   Estimated Cost
Article 6- The Contracting Entity determines the estimated cost of the goods tender, which constitutes the subject matter of the tender, according to the principles and procedures set forth in this Regulation before holding the tender.

The Contracting Entities shall ascertain whether the estimated cost of the goods tender, which constitutes the subject matter of the tender, is below the threshold value of the tender or not.

The estimated cost shall be determined on actual basis through detailed amount and price inquiry in accordance with the principles and procedures set forth in this Regulation and indicated in an estimation schedule with the bases thereto.
The estimated cost ascertained by the contracting entities before the tender shall not be announced and released to the tenderers or other persons that do not have an official relation with the tender process.

Determination of estimated cost
Article 7- Ability to procure the goods needed by the Contracting Entities at the most competitive price is dependent upon the degree of estimating the correct amount of the goods to be procured. Therefore, the contracting entities shall comply with the following while determining the costs:

a) The contracting entities shall conduct comprehensive inquiries when determining the estimated cost of goods. The contracting entities may not only inquire prices from the governorships, municipalities, chambers of commerce, chambers of industry, chambers of profession, public authorities and organizations carrying out selling activities, exchange stocks and private sector organizations, but also request proforma invoices from the real persons or legal persons  producing or marketing the goods, which constitute the subject matter of the tender.  In this case, the following aspects that may affect the price shall be specified in the letters:

- Type, class and quantity of goods,
- Delivery period,
- Quantity of lot to be delivered,
- Freight,
- Insurance,
- Other specific conditions.

Furthermore, it shall be requested to specify the standards and brief technical specifications to be complied or quote price exclusive of value added tax by attaching the technical specification.

The information and documents obtained by the contracting entities shall be evaluated cumulatively as a result of such inquiries, and the most accurate estimated cost shall be determined.

However, the contracting entities shall not take into consideration the price quotations and proforma invoices that do not reflect the actual market prices and that may cause deviations in the calculation of estimated cost. They shall indicate the reasons thereof in the estimation schedule.

b) If the contracting entities have made tenders concerning the goods needed, they shall establish a table containing the prices of the last five years, or else the years when the tender has been made. The prices in the previous years shall be updated on the basis of TEFE (Wholesale Price Index) published by the State Statistics Institute and the arithmetic or weighted average is calculated for the tenders made in Turkish Lira. Such values found are entered into the table for use. In respect of the tenders made in foreign currencies, the arithmetic or weighted average of the prices in the previous years shall be calculated.

c) In determining the estimated costs, the prices shall be determined and continuously updated using all means of communication including Internet besides the market inquiry of the production methods and techniques of the goods needed, changes in the range of products, and of the substitute goods of the existing goods on the daily, weekly, monthly and annual basis by the experts designated by the contracting entities in addition to the methods given under paragraphs (a) and (b).

d) The contracting entities may evaluate the values obtained from paragraphs (a), (b) and (c) above individually or together in consideration of the nature of goods to be procured and the market conditions. Any kind of information and document used in the process of calculating the estimated cost shall be included in the estimation schedule.

Furthermore, if the technical and financial specifications of the goods cannot be determined as clearly as required or shall be procured or produced for the first time, or the personnel employed by the contracting entity in accordance with the laws, ordinances and regulations are not at the sufficient qualifications or numbers, the determination of estimated cost may be tendered to the consultancy service providers in accordance with the provisions of Law No:4734 upon the approval of contracting officer.

   Use of estimated cost for the budgeting and updating the same
Article 8- Since the tenders cannot be held for the works without any appropriation, the contracting entities shall determine the estimated cost for each work, which constitutes the subject matter of the tender, while programming the budgets. The value added tax shall be included in the amount of estimated cost in accordance with the pertinent legislation in determining the amount payable.

In view of the fact that the estimated cost determined may not maintain its validity until the first proclamation date of the tender as from the date of determination, such costs shall be updated by the contracting entities, where necessary, over the monthly TEFE (Wholesale Price Index) rates released by the State Statistics Institute, and also the decreases in the costs of goods shall be taken into account.


SECTION THREE
Determination of Applicable Tender Procedure

Determination of applicable tender procedure
Article 9- The applicable tender procedure shall be determined by the contracting entity as per in accordance with the provisions set forth in Articles 18 through 21 of Law No: 4734. During such determination, the priority is given to the open procedure. However, the restricted procedure or negotiated procedure can also be applied in the cases set forth in the Law in view of the criteria such as the type and nature of the goods to be procured, and also the goods requiring expertise and/or advanced technology, and the estimated cost and urgency.

Open procedure
Article 10- In the open procedure, all tenderers may submit tenders.

Restricted procedure
Article 11- The goods tenders, in which the open procedure cannot be applied since the goods to be procured require expertise and/or advanced technology, may be held through the restricted procedure by selecting the candidates that have the capacity to submit tenders and conducting an evaluation for prequalification.

Negotiated procedure
Article 12-The goods tenders may be held through the negotiated procedure in the following cases:

a) If there is not any tender submitted as a result of tender held through the open or restricted procedure;
b) If it is compulsory to hold the tender urgently when instantaneous and unexpected cases or the events that cannot be anticipated by the contracting entity such as the natural disasters, epidemic diseases, deaths or loss of properties arise;
c) If it is compulsory to hold the tender urgently when the special cases arise concerning the defense and security;
d) If the tender requires research and development and is not subject to the serial production;
e) If the technical and financial properties of the goods, which constitute the subject matter of the tender, cannot be defined as clearly as required since the said goods are exclusive and complicated;
f) The final goods and material tenders of the contracting entities with an estimated cost up to the amount set forth in paragraph (f) of Article 21 of Law No: 4734.


SECTION FOUR
Tender and Prequalification Document

Content of Tender and Prequalification Document
Article 13- The tender document to be prepared by the contracting entities shall include the administrative specification and the draft contract containing the instructions to tenderers, and a technical specification indicating the technical details and requirements of the work and other necessary documents and information.

The prequalification document of the goods tenders to be held through the restricted procedure shall contain the requirements for the candidates, prequalification criteria, and other necessary documents and information.

The tender document of the goods tenders to be rendered through the negotiated procedure shall contain the evaluation criteria designated for determination of the qualification of the tenderers.
   
   (Annex: 08/06/2004 – 25486 Official Gazette / Article 4) The contents of the tender or prequalification document shall be formed according to the articles included in the standard administrative or standard prequalification specifications and defining the scope of the tender or prequalification documents.

(Annex: 08/06/2004 – 25486 Official Gazette / Article 4) In the documents comprising the tender or prequalification documents, the arrangements made by the contracting entities should be compatible with each other.

   Preparation of tender and prequalification document
Article 14- (Amended: 08/06/2004 – 25486 Official Gazette / Article 5) The contracting entity shall prepare the document necessary to procure the goods needed on the basis of the standard tender document released by the Public Procurement Authority and approve each page. It is compulsory for the contracting entities to store this original copy to be used for preparation of the document to be submitted to the candidates or tenderers in the tender proceedings dossier. Where necessary, the tender and/or prequalification document to be submitted to the candidates or tenderers may be transferred to the “compact disc (CD)” provided that necessary safety precautions are taken within the framework of the principles defined by the Public Procurement Authority.

The following documents attached to this Regulation hereby shall be taken as basis according to the tender procedure determined in preparation of the tender document by the contracting entities;
a) Standard Forms (Annex: 1);
b) Standard Administrative Specification Applicable for the Goods Tenders Through The Open Procedure (Annex: 2);
c) Standard Prequalification Specification Applicable for the Goods Tenders Through The Restricted Procedure (Annex: 3);
d) Standard Administrative Specification Applicable for the Goods Tenders Through The Restricted Procedure (Annex: 4);
e) Standard Administrative Specification Applicable for the Goods Tenders Through The Negotiated Procedure (Annex: 5);
f) Standard Contract for Goods Tenders (Annex: 6);

and other legislation enacted by the Public  Procurement  Authority.

The contracting entity shall finalize the tender document until the date of first proclamation in the cases where proclamation shall be made, and until the date of solicitation in the cases where the solicitation shall be made. In the goods tenders to be held through the restricted procedure, the prequalification and tender document shall be prepared until the date of proclamation for prequalification.

It is compulsory to prepare the tender document in Turkish. However, in the tenders that are open to the foreign tenderers, the document may be prepared in other languages besides Turkish. The document prepared in the foreign language may be handed over with the document prepared in Turkish to the candidate or tenderer that makes such a request. In this case, the Turkish text shall supersede in understanding and interpreting the document as well as the settlement of disputes that may arise between the contracting entity and candidates or tenderers.


Administrative Specifications
Article 15- The contracting entities shall prepare the administrative specification on the basis of the Standard Administrative Specification annexed to this Regulation hereby according to the procedure applicable in the goods tender. The matters that are left blank for filling and provided in the footnotes in the Standard Administrative Specifications shall be governed in a way that is not contrary to the provisions set forth in the Public  Procurement  Law No: 4734, Public  Procurement  Contracts Law No: 4735 and the other imperative legislation according to the nature of work and the tender procedure.

Furthermore, the contracting entities may govern the matters in items that are not provided in the Standard Administrative Specifications and that are needed to be governed according to the nature of work in view of the requirements of goods, which constitute the subject matter of the tender, and in a way that is not contrary to the provisions set forth in Laws No: 4734 and No: 4735 and the pertinent imperative legislation as well as the regulations, communiqués and other regulating proceedings passed by the Public  Procurement  Authority, and add the same to the section “Miscellaneous” included in the Standard Administrative Specifications.

Prequalification Specifications
Article 16- In the tenders to be held through the restricted procedure the contracting entities shall prepare the prequalification specifications on the basis of “Standard Prequalification Specification Applicable for the Goods Tenders Through the Restricted Procedure” annexed to this Regulation hereby. The matters that are left blank for filling and provided in the footnotes in the Standard Administrative Specifications shall be governed in a way that is not contrary to the provisions set forth in the Laws No: 4734 and No: 4735 and the other legislation according to the nature of work.

   Furthermore, the contracting entities may govern the matters in items that are not provided in the “Standard Prequalification Specifications” and that are needed to be governed according to the nature of work in view of the requirements of goods tender, which constitute the subject matter of the tender, and in a way that is not contrary to the provisions set forth in Laws No: 4734 and No: 4735 and the pertinent legislation as well as the regulations, communiqués and other regulating proceedings passed by the Public  Procurement  Authority, and add the same to the section “Miscellaneous” included in the Standard Administrative Specifications.
   

Technical Specifications
Article 17- If necessary, a technical specification indicating the technical details and requirements of the goods to be procured shall be prepared and included in the tender document. It is essential that the technical criteria set forth in the technical specifications to be prepared by the contracting entities ensure productivity and functionality, and do not contain the matters hindering competition, and provide equal opportunity for all tenderers.

In the technical specifications, the arrangements shall be made to ensure compliance with the national and/or international technical standards, if any. These specifications shall include the technical properties and descriptions. A specific trademark, model, patent, origin, source or product may not be specified and properties and descriptions may not be indicated for a specific trademark or model. However, in cases where there are not the national and/or international technical standards or it is not possible to determine the technical properties, the trademark or model may be specified provided that the expression “or equivalent” is included.

It is essential that the technical specifications specifying any kind of properties of the goods, which constitute the subject matter of the tender, are prepared by the contracting entities. However, the technical specifications may be got prepared through the tender in compliance with the provisions of Law No: 4734 provided that it is approved by the contracting officer that it is not possible for the contracting entities to prepare them owing to the nature of the goods to be procured.


Contract
Article 18- The contracting entities shall take the “Standard Contract for Goods Tenders” as basis annexed to this Regulation in preparing the draft contract within the scope of the tender document.

The matters that are left blank for filling and provided in the footnotes in the Standard Contract shall be governed in a way that is not contrary to the provisions set forth in the Laws No: 4734 and No: 4735 and the other imperative legislation according to the type of contract (lump sum/ unit price).

Furthermore, in cases where there are not provisions in the Standard Contract, the arrangements may be made in items under section “Miscellaneous” in the Standard Contract to be prepared by the contracting entity provided that it is not contrary to the imperative legal rules and the tender document.

   The standard contracts may be used by the tenderers provided that they are not contrary to the principles set forth in the Standard Contract and the approval of the Authority is taken in the tenders of goods.

SECTION FIVE
Taking Approval for Tender,
Tender Commission and Tender Proceedings Dossier

Taking Approval for Tender
Article 19- The estimation schedule concerning the estimated cost issued by the contracting entities as well as the draft contract and other documents prepared in relation to the work to be procured shall be annexed to tender approval certificate (standard form KIK001.0/M) and this approval certificate shall be approved by the contracting officer.

After taking the approval for tender by the contracting entities, the tender register number shall be obtained from the Authority prior to the tender proclamation or solicitation.

Formation of tender commission and principles of activity
Article 20- (Amended: 08/06/2004 – 25486 Official Gazette / Article 6) The contracting officer shall form the tender commission within three days at the latest following the date of first notice or invitation in accordance with Article 6 of Law No: 4734 to hold the tender. The tender commission shall be formed with the primary members of minimum five persons of odd number including minimum four persons from the contracting entity’s personnel provided that one of them shall be the chairman and two of them shall be experts of the work, which constitutes the subject matter of the tender, and the financial officer in the general and added budget entities, and one personnel in charge of accountancy or financial affairs in the other entities in view of the fact the commission will convene with all members completely, and the reserve members with the same qualifications for substitution of such members by indicating their names. If there is not sufficient number and qualification of personnel at the contracting entity holding the tender, the members may be taken to the commission from the contracting entities within the scope of this Law.

All evaluations in the tender process shall be made by the tender commission without forming the commissions under other titles apart from the tender commission.

The tender commission shall convene with all members being present and the resolutions shall be taken with the majority of votes. The members of the commission may not act as absentee in the resolutions. The chairman and members of the commission are responsible for the votes and resolutions, and the members of commission that vote against a resolution shall be liable to write and sign the reasons thereof under the resolution of the commission. The resolutions taken and the minutes issued by the tender commission shall be signed by indicating the names, surnames and titles of the chairman and members of the commission.

Tender proceedings dossier
Article 21- The contracting entity shall issue a proceedings dossier for each work to be tendered. This dossier shall contain all documents related to the tender process such as the certificate of approval and the annexed estimated cost schedule, tender document, and the proclamation texts if made, the applications or tenders submitted by the candidates or tenderers and the notification and receipt documents concerning the notifications made to the candidates and tenderers, and the minutes and resolutions of the tender commission and the original copy of the receipt evidencing that the contribution fee of the Authority to be calculated by the contractor over such price if the contract price exceeds the amount set forth in sub-paragraph (1) of paragraph (j) of Article 53 of Law No: 4734 has been deposited to the bank account of the Public  Procurement  Authority.

Each copy of the tender proceedings dossier shall be given to the members of the tender commission by the contracting entity within three days following the date of proclamation or solicitation in order to enable them to conduct the necessary investigation.


SECTION SIX
Rules for Proclamation, Matters Concerning the Tender and Prequalification Document

Proclamation of Tender and Prequalification
Article 22- (Amended: 08/06/2004 – 25486 Official Gazette / Article 7) The tender and prequalification proclamations concerning the goods tenders shall be made according to the following principles by providing sufficient time to enable all tenderers to prepare their tenders:
a) In respect of the tenders, the estimated cost of which is equal to or exceeding the threshold values set forth in Article 8 of Law No: 4734;
1) The notices of tenders to be held through the open procedure shall be made at least forty days prior to the date of tender;
2) The prequalification proclamations of tenders to be held through the restricted procure shall be made at least fourteen days prior to the date of final application;
3) The proclamations of tenders to be held through the negotiated procedure shall be made at least twenty five days prior to the date of tender;
provided that they are published in the Public  Procurement  Bulletin at least once.
It is compulsory to send the letter of solicitation at least forty days before the date of tender to the candidates that are found to be qualified as a result of the evaluation for prequalification in the tenders to be held through the restricted procedure.
b) In respect of the tenders, the estimated cost of which is below the threshold values set forth in Article 8 of Law No: 4734;
1) Those, the estimated cost of which is at the amount set forth in sub-paragraph (1) of paragraph (b) of Article 13 of Law No: 4734, shall be proclaimed in at least two of the newspapers published at the place of tender and work at least seven days before the date of tender;
2) Those, the estimated cost of which is at the amount set forth in sub-paragraph (2) of paragraph (b) of Article 13 of Law No: 4734, shall be proclaimed in the Public  Procurement  Bulletin and one newspaper published at the place of work at least fourteen days before the date of tender;
3) Those, the estimated cost of which is at the amount set forth in sub-paragraph (3) of paragraph (b) of Article 13 of Law No: 4734, shall be proclaimed in the Public  Procurement  Bulletin and one newspaper published at the place of work at least twenty one days before the date of tender;
provided that they are published at least once.

In the tenders to be held through the restricted procedure, and the estimated cost of which is below the threshold values given under Article 8 of Law No: 4734, it is compulsory to send the letter of invitation at least seven days before the date of final application of the prequalification proclamations, and in the tenders that are held in the other procedures except for the duration set forth in paragraph (b) and as a result of the evaluation for prequalification, it is compulsory to send the letter of invitation according the periods given under paragraph (b) prior to the date of tender to the candidates that are found to be qualified.

The tenders meeting the qualities defined by the Authority shall also be announced in one of the newspapers with circulation throughout Turkey through the Press Announcement Authority.

If any newspaper is not published at the place of tender or work, the proclamation shall be made through the letters affixed on the billboards in the buildings of the relevant contracting entity, government and municipality and the municipal means of publication at the place where any newspaper is not published within the same periods. These proceedings are evidences through minutes.

The contracting entity may also proclaim the tenders through the international proclamations or other local newspapers published or means of press, information processing network or electronic communication (Internet) according to the importance and nature of the work in addition to the compulsory proclamations mentioned above. However, in case of international proclamation, twelve days shall be added to the minimum periods of proclamation mentioned above.

The date when the proclamation is published shall be taken as basis in calculation of the proclamation periods, and the date of tender or the deadline date shall not be taken into account. Subject to the proclamation periods set forth in this article, it is compulsory to send the proclamation texts at sufficient period in advance to the places where the proclamation is intended to be made in view of the duration that may elapse until the actual proclamation.

If the date determined for the tender is a holiday, the tender shall be held at the same place and time on the next business day without necessity for a proclamation again and the tenders submitted until such time shall be accepted. The time of tender shall be determined in view of the working hours. Even if the working hours change after the proclamation, the proclamation shall be held at the time proclaimed.

It is not compulsory to make notices for the tenders to be held through the negotiated procedure in accordance with  the cases set forth in paragraphs (b), (c) and (f) of Article 21 of Law No: 4734. However, minimum three tenderers have to be invited to the tender in this case (KIK004.1/M).

Arrangement of proclamations for tender and prequalification
Article 23- (Amended: 08/06/2004 – 25486 Official Gazette / Article 8) The proclamations for tenders shall be prepared in compliance with the standard tender and prequalification proclamation forms formed according to the tender procedure on the basis of the information included in the tender document (Standard Forms KIK002.0/M, KIK003.0/M and KIK004.0/M).

The arrangements to the information given in the proclamations for tenders and prequalification as well as the documents comprising the tender or prequalification documentation have to be in compliance with each other.

The matters not specified in the tender and prequalification document shall not be included in the proclamations.

Non-compliance of proclamation
Article 24- The proclamations that are not in compliance with the provisions set forth in Articles 22 and 23 of this Regulation hereby shall be invalid. In this case, the tender or prequalification cannot be made unless the proclamation is renewed in compliance with such articles.

However, except for the failure to make the proclamation set forth in Article 22 of this Regulation or the failure to comply with the proclamation periods, if it is understood that the proclamations are not in compliance with the provisions set out under Article 23, the tender or prequalification can be made by issuing a correction proclamation for the faulty matters within ten (10) days following the publication of the proclamations. In this case, it shall be ensured that the correction proclamation is published in the same format with the means of publication where the proclamation, which constitutes the subject matter of such correction, is published.


Review on and purchasing the tender and prequalification document
Article 25- (Amended: 08/06/2004 – 25486 Official Gazette / Article 9) The prequalification document and tender document, which are prepared and each page of which is approved by the contracting entity, can be reviewed free of charge at the address specified in the proclamation of the contracting entity by the candidates or tenderers. It is compulsory that the candidates or tenderers that intend to participate in prequalification or tender purchase the copies of such document, each page of which is approved by the contracting entity (standard form KIK005.0/M). However, the copies of the tender or prequalification document copied to the “compact disc (CD)” may be sold to the candidates and tenderers provided that the contracting entity takes the necessary security precautions within the framework of the principles defined by the Public  Procurement  Authority.

It is essential that the document is sold against the cost not exceeding the cost of printing and not hindering competition, and the right of selling such document is solely owned by the contracting entity. The minutes containing the documents and information for determining the cost of printing the document shall be issued and stored in the tender proceedings dossier. The contracting entity may not claim any additional fee whatsoever under the title of donation, aid or other titles against selling the documents, and may not claim depositing money to the bodies such as foundations, funds, associations and unions except for the budget of the amount of tender document.


Amendment to and clarification in the tender and prequalification document
Article 26- It is essential that any amendment is not made to the tender and prequalification document after the tender is held. If it compulsory to make such amendment, the reasons and requirements to this effect shall be ascertained through a minute and the previous proclamations shall be void, and the work shall be proclaimed again in the same manner. However, if the substantial or technical mistakes or defects are determined by the contracting entity or notified in writing by the tenderers or candidates to the extent to affect the preparation of tenders and applications, amendments can be made to the tender and/or prequalification document by issuing an addendum. The addendum concerning such amendments shall be submitted to all those that have purchased the tender or prequalification document via registered & prepaid mail in writing or delivered personally against signature so that they are informed of the same at least ten (10) days prior to the deadline date of submitting tenders or deadline date of application, and they shall be ensured to be informed at least ten (10) days prior to the deadline date of submitting tenders or deadline date of application for prequalification. If an additional duration is needed to prepare the tenders or applications owing to such amendment, the deadline date of submitting tenders or deadline date of application for prequalification may be extended for maximum twenty (20) days by virtue of an addendum only once. In case of issuing an addendum, the tenderers or candidates that have already submitted their tenders or made their applications shall be given the opportunity to withdraw their tenders or applications and submit their tenders or make their applications again.

In respect of the matters that are needed to be clarified in the tender or prequalification document during the application for prequalification or submitting tenders, the candidates or tenderers may request clarification in writing until twenty (20) days prior to the deadline date for application or submitting tenders. The requests for clarification after such date shall not be taken into consideration.

If such request for clarification is approved by the contracting entity, the clarification to be made by the contracting entity shall be submitted to all those that have purchased the tender or prequalification document until such date via registered & prepaid mail in writing or delivered personally against signature. Such written clarification by the contracting entity shall be made so that all candidates or tenderers are informed of the same at least ten (10) days prior to the deadline date of submitting tenders or deadline date of application. The clarification shall contain the description of the problem and the detailed answers of the contracting entity, however, the identity of the candidate or tenderer that requests for clarification shall not be released. The written clarifications shall be given together with the tender and prequalification document to those that purchase the tender or prequalification document after such clarification.


Cancellation of tender prior to the time of tender
Article 27- In cases deemed necessary by the contracting entity or in cases where the matters that hinder holding the tender in the documents comprising the tender document and that are not possible to be corrected, the tender may be cancelled prior to the time of tender.

In this case, cancellation of the tender shall be immediately notified to the tenderers by indicating the reason of such cancellation. Cancellation of the tender shall be notified separately to those that have already submitted tenders until such stage. If the tender is cancelled, all tenders submitted shall be deemed rejected and such tenders shall be returned to the tenderers without opening the same. Any right may not be claimed against the contracting entity on the grounds of cancellation of the tender.

In the event of cancellation of the tender, the reasons for such cancellation shall be reviewed so that the tender may be held again.

CHAPTER TWO
Qualification for Participation in Tender

SECTION ONE
General Provisions

Principles for determination of qualification
Article 28- Any information, certificate, document and evaluation criteria required by the contracting entities in order the evaluate the economic and financial as well as professional and technical qualifications of the tenderers may not be determined to result in hindering the competition. Furthermore, the criteria applicable for evaluation of qualification shall be to the extent to measure the degree of said tender being made by the tenderer according to the nature of the work, which constitutes the subject matter of the tender.

(Amended: 08/06/2004 – 25486 Official Gazette / Article 10) It is essential that those required for evaluation of qualification among the information and/or documents set forth under this Regulation hereby and the qualification criteria required in these documents are mentioned in the tender or prequalification document and the solicitation or the solicitation documents concerning the tender or prequalification according to the nature of the goods/ works, which constitute the subject matter of the tender.

(Amended: 08/06/2004 – 25486 Official Gazette / Article 10) The joint venture being qualified shall not be construed as each of the partner or members being qualified separately, and if the joint venture being qualified as a result of evaluation for prequalification disintegrates prior to the tender, the letter of invitation shall be deemed invalid.

In the tenders where partial tenders are possible in the tender document, if the tenderers submit tenders for a part/ items of the subject tender, the evaluation on the documents concerning the economic and financial as well as professional and technical qualifications shall be made in respect of the parts/ items, for which the tender is submitted.

   Documents Required
   Article 29- The documents required for evaluation of economic and financial as well as professional and technical qualification of the tenderer under this Regulation:

a) In respect of the goods tenders held irrespective of the estimated cost, the documents evidencing that the tenderer continues his professional activities and is authorized to submit tenders;

b) In respect of the goods tenders requiring a specific production;

1) In respect of tenders with an estimated cost equal to or up to ten times the threshold value, the documents obtained from the banks concerning the financial status of the tenderer or the balance sheet or parts thereof deemed necessary of the tenderer, or else, at least one of the equivalent documents;

2) In respect of tenders with an estimated cost equal to or exceeding ten times the threshold value;

- The documents obtained from the banks concerning the financial status of the tenderer;
- The balance sheet or parts thereof deemed necessary of the tenderer, or else, the equivalent documents, which are compulsory to be published in accordance with the pertinent legislation;
- The documents indicating the business volume of tenderer;
- The work experience certificates;

are compulsory to be required by the contracting entities.

However, in respect of the goods tenders that do not require a specific production process and the tenders that will be produced for the first time though not requiring a specific production process, the contracting entity shall determine the documents to be required in compliance with the nature of the goods, which constitute the subject matter of the tender, and the additional documents to be required except for the ones listed above in the tenders mentioned under paragraph (b) within the framework of the principles set forth in Article 10 of Law No: 4734 and this Regulation.

Way of Submitting Documents
Article 30- (Amended: 08/06/2004 – 25486 Official Gazette / Article 11) The contracting entities shall require the originals or the copies duly certified by the notaries in implementation of this Regulation. The candidates or tenderers may also attach the copies of the documents affixed with “the original seen by the contracting entity” or any expression with the similar meaning and the originals returned to them by the contracting entity prior to the prequalification or tender in lieu of the original documents to their tenders or applications. Such applications of the candidates or tenderers have to be met by the authorized personnel of the contracting entity before the tender.

The notarized documents have to bear an expression indicating that the documents are true copies, otherwise the ones certified pursuant to the photocopies and the ones bearing “it is the same with the one submitted to me” or any similar meaning shall not be deemed valid.

The originals of the notarized work experience certificates submitted within the scope of the tender shall be submitted to the contracting entity before concluding the contract by the tenderer that is awarded.

However, if the documents and certificates of compliance to the quality and standards such as the quality and product compatibility certificates are required from the tenderers, the originals or the notarized copies of the said certificates or the duplicated copies in accordance with legislation of the certificates indicating that the products have been manufactured and marketed in compliance with the relevant legislation and standards, or the brands, markings and labels concerning the quality and standards on the goods/ packages shall also be acceptable.

The documents obtained from the foreign countries and submitted by the domestic or foreign tenderers have to be issued according to the legislation of the respective country and approved by the Consulate of the Republic of Turkey in the country where it is issued or the Turkish Ministry of Foreign Affairs. However, the documents mentioned in the tender document and the official documents issued from the countries that are party to the Convention on Abolishing the Obligation to Certify Foreign Official Documents and included within the scope of Article 1 of this convention shall be exempted from the approval of the Consulate of the Republic of Turkey in the country where it is issued or the Turkish Ministry of Foreign Affairs provided that they bear the “Apostille” seal. Provided that there is an agreement or convention containing provisions that require certain proceedings in respect of certifying the signature, seal or stamp on the documents between the Republic of Turkey and any other state or states, the approval of documents issued from such countries shall be subject to the provisions of this agreement or convention. Provided that the Turkish translations of the documents are required by the contracting entities, translations of official documents issued abroad as well as the documents listed in the tender document by the contracting entity have to be approved by the Consulate of the Republic of Turkey or the Turkish Ministry of Foreign Affairs. Translations of documents that bear the seal of Apostille as well as the translations of documents that are not required to be approved by the Consulate of the Republic of Turkey or the Turkish Ministry of Foreign Affairs have to be rendered by the sworn translators and notarized.

The documents and translations thereof issued by the certification bodies accredited by the national accreditation bodies included in the International Accreditation Forum for Mutual Recognition Agreement shall be exempted from the approval by the Consulate of the Republic of Turkey in the country where it is issued or the Turkish Ministry of Foreign Affairs provided that it is confirmed with a letter obtained from the Turkish Accreditation Authority that such bodies have been duly accredited according to the international rules.

The contracting entities may communicate with the Chamber of Profession, which the tenderers acting abroad are registered in the trade registers, about the status of tenderers and the trade register (if the tenderer is a company, its incorporation and shareholders), and may assign the organizations specialized in this issue to conduct inquiry abroad for determination of the reliability of the tenderer.

The contracting entities shall evaluate the documents containing monetary values concerning the economic and financial as well as professional and technical qualification by converting such values to the currency taken as basis for evaluation of tenders over the foreign exchange buying rate published by the Central Bank of the Republic of Turkey on the date of first proclamation or invitation, and over the foreign exchange cross-rates in cases where the tenders may be submitted in foreign currencies.

The foreign tenderers shall submit the equivalent documents to the ones required in the tender document in accordance with the legislation applicable in their respective countries. If there is not the equivalent of or it is not possible to issue the documents listed under sub-paragraphs (a), (b), (c), (d), (e) and (g) of the last paragraph of Article 10 of Law No: 4734 in accordance with  their respective legislation, they shall submit written declarations to this effect. However, this has to be confirmed by the mission offices in Turkey of the country of the nationality of the foreign tenderer, who is a real person, or the country where the principal office of the foreign tenderer, who is a legal entity, or the mission offices of the Republic of Turkey in such countries.

SECTION TWO
Documents Concerning the Economic and Financial Qualification

Documents Obtained From the Banks
Article 31- In the goods tenders where such documents are required in accordance with Article 29 of this Regulation, the tenderers have to submit the documents obtained from the domestic or foreign banks showing their unused cash facility or unused guarantee letter facility in the banks at an amount to be determined by the tenderers, but not less than 5 % of the bid price (standard forms KIK030.0/M and KIK030.0.1/M).

(Amended: 08/06/2004 – 25486 Official Gazette / Article 12) Where necessary, these documents shall be confirmed from the general directorate and branch office of the related bank by the contracting entity. The confirmations via fax have to bear the signatures of at least two officials.
In case of joint ventures, these documents can be provided jointly irrespective of the shares of the partners.

Balance sheets or equivalent documents of tenderer
Article 32- In the goods tenders where the balance sheet of tenderer is required in accordance with Article 36 of this Regulation, the tenderer has to submit the end-of-year balance sheet for the year prior the year when the tender is held or the parts of the balance sheet deemed necessary, otherwise the equivalent documents.

In the cases where such documents are required;
   a) The current ratio showing whether the tenderer has the necessary liquidity and the power to cover debts in short term (one year) for providing the cash flow in certain periods (current assets / short term liabilities) must be minimum 0.50;

   b) The equity ratio showing the extent of shareholders’ equity within the assets (shareholders’ equity / total assets) must be minimum 0.10;
   
   c) Ratio of short term bank liabilities to the shareholders’ equity must be less than 0.75.

The items indicated hereinabove are accepted as qualification criteria and all of these three criteria must be complied with at the same time.

The tenderers who can not meet these requirements in the preceding year may submit their certificates for up to the last two years, and in this case, it shall be checked whether the minimum values are met based on the average of the last two years, for which the certificates are submitted.

The balance sheets or the parts of the balance sheets that are deemed necessary must be issued pursuant to the relevant legislation and approved by the certified financial consultant or independent accountant & financial consultant or the tax office.

The tenderers who do not present their balance sheets that are not compulsory to be issued or their parts may evidence their compliance with the criteria indicated hereinabove with certificates approved by the certified financial consultant or independent accountant & financial consultant.

In accordance with the values shown in the self-employment income ledger prepared and approved in accordance with the relevant legislation to be submitted by the self – employed, the previous year value of total income / total expense must be minimum (1,25). In this case, the ratios to be calculated based on the balance sheets or their necessary parts shall not be taken into consideration.

In case the tenderer is a joint venture, each of the tenderers has to submit the requested certificates separately and each of the partners must comply with the requirements indicated in paragraphs (a), (b) and (c). But in cases where the share of the pilot firm is more than 50%, compliance of the pilot company solely with these requirements shall be satisfactory.

(Amended: 08/06/2004- 25486 Official Gazette/ Article 13) In respect of the companies incorporated within the year when the tender is held, it shall be satisfactory to submit the opening balance sheet meeting the balance sheet ratios mentioned in paragraphs (a), (b) and (c), and these balance sheets also have to be issued pursuant to the relevant legislation and approved by the certified financial consultant or independent accountant & financial consultant or the tax office.

Documents indicating the business volume of tenderer
   Article 33- In the goods tenders where these documents are required in accordance with Article 29 of this Regulation, the tenderers shall submit the income table showing the total turnover of the tenderer for the last year before the year, in which the tender is held, and the documents showing the amount of work undertaken and completed by the tenderer in relation to the work constituting the subject matter of the tender. In respect of the goods to be procured from the self – employed, the turnover can be documented by virtue of the extract of free–employment income ledger.

In the calculation of the turnover, the total of the incomes obtained from the sales activities of the tenderer either within or out of the country shall be taken into consideration.

   The last year values of these documents must not be less than 15% of the price to be proposed by the tenderer for total turnover and less than 10% of the price to be proposed by the tenderer for incomes from the sales. The tenderer that complies with either of these criteria and that submits the document evidencing such compliance shall be satisfactory.
   
   The income table submitted as well as the self employment income ledger and the documents showing the total sales incomes relating to the amount of work undertaken and completed have to be approved by the certified financial consultant, independent accountant & financial consultant or the tax office.

   In the assessment of the works undertaken by the tenderer, the condition of performing the work under a contract in the private or public sector shall be required.

The amount of the Works completed by the Tenderer in a joint venture shall be taken into consideration in proportion with his share in such joint venture.

   (Amended: 08/06/2004 – 25486 Official Gazette / Article 14) In respect of the joint ventures, the pilot partner and the other partners shall be liable to meet the minimum qualification criteria in proportion to their shares in such joint venture as the total turnover or total income of sales. Each of the joint venture partners has to submit the documents required separately.

   In respect of the companies incorporated within the year when the tender is held, it shall be satisfactory to submit the documents indicating the total turnover or the total sales income, and the extract of free- employment profit book and the documents indicating the total sales income concerning the works undergoing and completed have to be issued pursuant to the relevant legislation and approved by the certified financial consultant or independent accountant & financial consultant or the tax office.
   
(Amended: 08/06/2004 – 25486 Official Gazette / Article 14) The total annual turnover or total sales income from the income statement shall be updated over the monthly TEFE (Table 2: Index in line “General”) published by the State Statistics Institute as of June 30th of the year when the income is obtained (the index in June published in the subsequent month shall be taken as basis).

SECTION THREE
Documents Concerning Professional and Technical Qualification

   Documents indicating that the tenderer is currently acting and is authorized to submit tenders
Article 34- The following documents shall be required from the tenderers in the goods tenders to be held by the contracting entities under this Regulation:
a) In the event that the tenderer is a real person, the certificate received within the year when the first announcement with regard to the tender is made and indicating registration to the Chamber of Commerce and/or Industry or Profession,
b) In the event that the tenderer is a legal entity, the certificate received from the registered Chamber of Commerce and/or Industry within the year when the first announcement with regard to the tender is made and indicating the registration of the legal entity,
c) Signature statement certified by the notary public in the event that the tenderer is a real person,
d) Original or notarized copy of Trade Registers Gazette indicating the shares of the shareholders of the company and their position within the company or the documents evidencing such issues as well as the signature circular of the legal entity certified by the notary public in the event that the tenderer is a legal entity.
e) (Annex: 08/06/2004 – 25486 Official Gazette / Article 15) Declaration concerning the personal companies that the tenderer owns and the capital companies that the tenderer holds more than half of the capital according to the nature of tenderer being a real person or legal entity (Standard Form KIK 027.3/M).

In the event of participation in the tender by proxy, the power of attorney vesting power to the person participating on behalf of the tenderer and the notarized signature statement of such person participating by proxy shall be required.

(Amended: 08/06/2004 – 25486 Official Gazette / Article 15) In the case of joint ventures, besides the joint venture statement (Standard Form KIK 028.0/M), the physical or corporate bodies that constitute the joint venture shall be liable to submit the documents listed under items (a), (b), (c), (d) and (e) separately.

Work Experience Certificates
Article 35- (Amended: 08/06/2004 – 25486 Official Gazette / Article 16) In the goods tenders where these documents are required in accordance with Article 29 of this Regulation, it is compulsory to require the certificates indicating the work experience concerning the work, which constitutes the subject matter of tender, or similar works, which have been accepted perfect by the contracting entity for the public or private sector at home or abroad within the last five years.

a) Basic criteria for the work experience certificate:

The tenderer shall be required to submit the work experience certificate concerning the single contract for the goods, which constitute the subject matter of tender, or similar goods at a percentage to be determined by the contracting entity, but not less than 25% and more than 50% of the price proposed by the tenderer.

In the case of joint ventures, the pilot partner has to meet minimum 30% of the amount of the minimum work experience. However, in each case, the amount of work experience of the pilot partner has to be more than that of the other partner and the total amount of the work experience of the pilot partner and other partners must meet the minimum amount of work experience. If the work experience certificate of the pilot partner meets the qualification criteria defined by the contracting entity, the work experience certificate shall not be required from the partners.

The certificates indicating the work experience refers to the work completion certificate and work status certificate demonstrating the experience of the tenderer in the goods, which constitute the subject matter of the tender, or similar goods, and that are issued and evaluated according to the principles and procedures set forth in this Regulation hereby.

Similar works to be evaluated for the work experience refer to the goods that are similar to the goods, which constitute the subject matter of tender, or the portions of goods in respect of quality and size, and that are performed using the same or similar procedures, and that have similar qualities with respect to the plants, equipment, financial power, expertise, personnel and organization requirements.

In compliance with the principles set forth in the definitions, the contracting entities shall determine which good or goods are accepted as similar goods and specify them in the tender or prequalification document as well as the proclamation or solicitation documents concerning the tender or prequalification.

b) Issuance of work experience certificates:

The work experience certificates shall be issued by the contracting entity, for which the contract is performed, and approved by the contracting officer in respect of the tender of goods for the public authorities and organizations under a contract.

The work experience certificate shall be issued for the works undertaken to the public authorities and organizations subject to a written contract on the basis of one single contract in the forms of;
a) Work completion certificate (standard form KIK032.0/M) for the contractors of the works completed;
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