Regulation on Implementation of Works Procurement

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REGULATION ON IMPLEMENTATION OF WORKS PROCUREMENTS


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 Law #4734 dd. 04/01/2002 in the works procurements.

This Regulation enacted in relation to the implementation of Public Procurement Law #4734 and Public Procurement Contracts Law #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 #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 #4734:

Threshold Value: (Amended: 08/06/2004 – 25486 Official Gazette/ Art. 1) Refers to the monetary limites defined under Article 8 of Law #4734 and updated under Article 67 of the same Law for use in the application of the provisions concerning the procurement proclamation periods and rules as well as the participation of domestic tenderers solely in works procurements or application of price advantage in favor of the domestic tenderers in the procurements;

Similar Work: Refers to the works that are similar in respect of quality and size with the works or portion of works, which constitute the subject matter of procurement, and that require the same or similar construction procedures and techniques, and that have similar properties with respect to plants, machinery, tools, other equipment, financial power, expertise and organization;

Work Experience Certificate: Refers to the work completion certificate, work status certificate, work supervision certificate and work management certificate that provide the professional experience in the works or similar works, which constitute the subject matter of the procurement, and that are issued, given and evaluated according to the principles and procedures set forth in this Regulation;

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

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 procurements, works procurements and works procurements may not be held as long as there is not an acceptable natural relation among them.

(Amended: 08/06/2004 – 25486 Official Gazette / Art. 2) The works procurements cannot be divided in parts so as not 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.

(Amended: 08/06/2004 – 25486 Official Gazette / Art. 2) Open procedure and restricted procedure constitute basic procedures in the procurements. Negotiated procedure and direct procurement are only possible in the specific cases provided in the Law.

The procurement shall not be opened for any work without any appropriation.

EIA approval certificate is a must for holding the procurement of works requiring the Environmental Impact Assessment (EIA) report as per the pertinent legislation. However, EIA report shall not be required for the works that shall be tendered urgently owing to the natural disasters.

The matters that the contracting entities have to comply with in the works procurements
Article 5- In the works procurements, the contracting entities have to comply with the following matters before holding the procurement:

a) In order to be able to hold the procurement covering more than one year, it is compulsory to make programming to ensure the availability of appropriations in the budgets in different years according to the duration of work. The appropriation stipulated for the first year may not be less than 10% of the project cost, and the parts of appropriations programmed for the subsequent years may not be reduced in the subsequent years.

b) It is essential that the procurement is held in a timely manner, and that the procurement is concluded within the first nine months of the year in the works that cover more than one year and that have the nature of investment (except for the ones to be held owing to the natural disasters) in view of the period when the estimated appropriations can be used.

c) The procurement cannot be held before acquiring the land, and completing the ownership, expropriation and public improvements, where necessary, and drawing up the implementation projects. It is compulsory to hold the procurement by receiving the turn key lump sum tenders in the works with an implementation project. However, the procurement may be held with the preliminary or final design in the works without any sufficient period to draw up the implementation project, and with the final design in the works, for which the implementation project cannot be drawn up since the land and ground surveys are required during the performance of work except for the building works. In these works, the procurement can be held by receiving turn key lump sum tenders for the portions of work, for which the implementation project is performed, and unit price tenders for each item of works in respect of the portions, for which the implementation project cannot be drawn up. The repair works to be performed according to the survey, restoration and restitution projects may be tendered by receiving unit price tenders for each item of works. The requirements of acquisition of land, ownership and expropriation shall not be applicable for the dam, large irrigation, oil and natural gas pipeline projects.

d) In respect of the mass houses projects under the Mass Houses Law #2985, the procurement may be held without applying the provisions set forth in paragraphs five and six of Law #4734 and paragraphs (a) and (b) of Article 62 and irrespective of the requirements of expropriation, ownership, acquisition of land, public improvements and implementation project set forth in paragraph (c) of Article 62. However, in cases where the EIA report is compulsory, such report has to be received before concluding the contract.

e) (Amended: 08/06/2004 – 25486 Official Gazette / Art. 3) Unless approved by the Board, the annual total amount of the expenditures to be made within the monetary limits set forth in paragraph (d) of Article 22 of Law #4734 cannot exceed 10% of the appropriations allocated by the contracting entities to the budget for works. The contracting entities shall take into account the amount of appropriations allocated for the works to be carried out under this Law and allocated in the annual budgets in the works that will be carried out within the said monetary limits.

f) (Annex: 08/06/2004 – 25486 Official Gazette / Art. 3) The proclamation or solicitation cannot be made before preparation of the tender document in the procurements with open and negotiated procedure, and of the prequalification and tender document in the procurements with restricted procedure.

Domestic Tenderer
   Article 6- Domestic tenderer refers to the physical bodies that are the citizens of the Republic of Turkey and the legal entity incorporated under the laws of the Republic of Turkey.

   In order to be assumed as domestic tenderers, the physical bodies shall submit the copy of identity card evidencing the citizenship to the Republic of Turkey, and the legal entity 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 Foundations;
d) Certificate issued by the relevant ministry in respect of the Cooperatives;
e) Certificate issued by the relevant authorities in respect of other legal entity.

(Amended: 08/06/2004 – 25486 Official Gazette/ Art. 4) These requirements shall be applicable for each partner comprising the joint venture separately.

(Amended: 08/06/2004 – 25486 Official Gazette/ Art. 4) 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 procurements, 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 7- The Contracting Entity determines the estimated cost of the works, which constitute the subject matter of the procurement, according to the principles and procedures set forth in this Regulation before holding the procurement.

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

The estimated cost shall be determined on actual basis through detailed amount and price inquiry as per 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 procurement shall not be announced and released to the tenderers or other persons that do not have an official relation with the procurement process.

Determination of amounts taken as basis for the calculation of estimated cost
Article 8- Firstly, the following efforts have to be made to determine the amounts taken as basis for the calculation of estimated cost.

a) Land and ground survey: It is compulsory to conduct the land and ground surveys in the works to be tendered by receiving turn key lump sum tenders over the implementation project; and to conduct the possible land and ground surveys in the works to be tendered by receiving unit price tenders over the preliminary and/or final design.

b) Project requirement: It is required to draw up the implementation project for the building works, and the implementation project for the portions of other works, for which the implementation project can be drawn up, and the final design for the portions, for which the implementation project cannot be drawn up, and the preliminary and/or final design for the works, for which there is not sufficient time to draw up the implementation project due to the natural disasters, and calculate the estimated cost on the basis of the said projects.

c) Drawing up location lists: The location lists shall be drawn up to indicate the names and locations of the items within the scope of works and constituting basis for drawing up the estimated costs on the basis of the preliminary and final designs and implementation projects.

d) Drawing up bills of quantities: The bills of quantities shall be drawn up in the forms of work items and/or work groups for the works that shall be procured by receiving the turn key lump sum tenders, and in the forms of work items for the works that shall be procured by receiving the unit price tenders in order to determine in which portion and what quantity of works shall be performed according to the dimensions and tariffs in the projects and location lists concerning the works, which constitute the subject matter of procurement.

e) Repair works, for which the implementation project cannot drawn up: In respect of the repair works, for which it is impossible to draw up the implementation projects, the estimated cost shall be calculated according to the location lists and bills of quantities issues on the basis of the surveys conducted.

f) Drawing up unit price and construction tariffs: In respect of works to be procured by receiving unit price tenders on the basis of the preliminary and/or final designs, the contracting entities shall draw up unit price tariffs that describe the name of item, construction requirements, type of measure, unit, the factors inclusive and exclusive of the unit price technically without causing any dispute.

In respect of the turn key lump sum works, the technical descriptions and specifications of the construction items or the work groups shall be defined on the basis of the implementation projects and location lists.

Determining prices and market values taken as basis for calculation of estimated cost
Article 9- The estimated cost for the works, which constitute the subject matter of procurement, shall be determined using one or more of the following items and making the other necessary inquiries:
a) Estimates costs, market values and unit prices suitable for the nature of works as determined by the public authorities;
b) Prices determined by the relevant chambers of profession, universities or similar organizations;
c) Construction costs, prices and values quoted by the persons and entities acting as contractors or subcontractors and that are experienced in their respective fields;
d) Determination of prices by the contracting entity based upon the market inquiry.

In cases where the construction estimated costs, unit prices, market values and the price analyses of the public authorities are not in consistent with the nature of the works or items to be performed, and do not reflect the technological stage and/or actual market values concerning the construction technique of works, the said prices and analyses shall not be taken as basis, but the real cost analyses and determinations to be made by the contracting entity shall be applied.

In price determinations based upon the market inquiry on the basis of the market values of the whole work, work group, item and material, the appropriate prices shall be determined by receiving prices or proforma invoices from the manufacturers, producers, main distributors, wholesalers, authorized sellers and sellers of the works, constructions and/or materials and making the necessary comparisons. The matter whether the prices in hesitation are in consistent with the actual market values or not shall be clarified with the written market values to be obtained from the Chambers of Commerce and/or Industry.

The letter sent to the persons and organizations subject to inquiry during such market research shall contain the detailed specifications and standards of the work group, item or materials, for which the price shall be determined. The persons and organizations, from which the price is inquired, shall be applied by means of the letters meeting the same requirements, and the prices shall be inquired exclusive of Value Added Tax. The price quotations and proforma invoices that do not meet the requirements shall not be taken into account.

Calculation of estimated cost
Article 10- (Amended: 08/06/2004 – 25486 Official Gazette/ Art. 5) The amount found by multiplying the amounts of works for each item and/or work group with the prices determined as per Article 9 of Regulation and not containing the contractor's profit and general expenses shall be calculated exclusive of VAT and the estimated cost shall be calculated by adding the equivalent of the profits and general expenses not exceeding 25 % to the amount found in this way. The related estimation schedule (standard form KIK.001.1/Y) shall be submitted to the contracting officer with the certificate of approval annexed after signing by those that prepare such schedule. The estimated cost calculation schedule and the certificate of approval shall be stored in the procurement proceedings dossier.

Calculation of estimated cost in case the materials, tools, machinery, equipment etc. are supplied by the contracting entity
   Article 11- In the event that the materials, tools, machinery and equipment etc. are supplied by the contracting entity for the works procurements to be tendered or to be used as ancillary equipment, the estimated cost shall be determined exclusive of the prices of such equipment supplied by the contracting entity, and the list of materials shall be attached to the estimated cost schedule to be submitted to the contracting officer.

Assignment of consultancy service providers for determination of estimated cost
      Article 12- If the personnel employed by the contracting entity is not at sufficient qualification or number as per the laws, ordinances and regulations, the service for determination of the estimated cost may also be rendered through tendering the same to the consultancy service providers with the approval of the contracting officer.

   Use of estimated cost for the budgeting and updating same
Article 13- Since the procurements 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 procurement, while programming the budgets. The value added tax shall be added to the amount of estimated cost as per the pertinent legislation in determining the amount of appropriation.

In view of the fact that the estimated cost determined may not maintain its validity until the first proclamation date of the procurement as from the date of determination, such costs shall be updated by the contracting entities, where necessary, over the monthly Wholesale Prices Index  (Table 2: Index in line "General") released by the State Statistics Institute.


SECTION THREE
Determination of Applicable Procurement Procedure

Determination of applicable procurement procedure
Article 14- The applicable procurement procedure shall be determined by the contracting entity as per the provisions set forth in Articles 18 through 21 of Law #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 works to be performed, and also the works requiring expertise and/or advanced technology, and the estimated cost and urgency.

Open procedure
Article 15- In the open procedure, all tenderers may submit tenders.

Restricted procedure
Article 16- The works procurements, in which the open procedure cannot be applied since the works to be performed 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 17- The works procurements may be held through the negotiated procedure in the following cases:

a) If there is not any tender submitted as a result of procurement held through the open or restricted procedure;
b) If it is compulsory to hold the procurement 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 procurement urgently when the special cases arise concerning the defense and security;
d) If the procurement requires research and development and is not subject to the serial production;
e) If the technical and financial properties of the services, which constitute the subject matter of the procurement, cannot be defined as clearly as required since the said services are exclusive and complicated.

SECTION FOUR
Tender and Prequalification Document

Content of Tender and Prequalification Document
Article 18- 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 covering the project of works and other necessary documents and information.

The prequalification document of the works procurements 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 works procurements to be held 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 6) 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 6) In the documents comprising the tender or prequalification documents, the arrangements made by the contracting entities should be consistent with each other.

   Preparation of tender and prequalification document
Article 19- (Amended: 08/06/2004 – 25486 Official Gazette / Article 7) The contracting entity shall prepare the document necessary to procure the services 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 procurement 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 procurement procedure determined in preparation of the tender document by the contracting entities;
a) Standard Forms (Annex: 1);
b) Standard Administrative Specification Applicable for the Works Procurements Through The Open Procedure (Annex: 2);
c) Standard Prequalification Specification Applicable for the Works Procurements Through The Restricted Procedure (Annex: 3);
d) Standard Administrative Specification Applicable for the Works Procurements Through The Restricted Procedure (Annex: 4);
e) Standard Administrative Specification Applicable for the Works Procurements Through The Negotiated Procedure (Annex: 5);
f) Standard Contract for Works Procurements (Turn Key Lump Sum Works) (Annex: 6);
g) Standard Contract for Works Procurements (Unit Price Works) (Annex: 7);
h) General Specification for Works (Annex: ;
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 works procurements 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 or prequalification document in Turkish. However, in the procurements 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 20- 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 works procurement. 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 #4734, Public Procurement Contracts Law #4735 and the other imperative legislation according to the nature of work and the procurement 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 services, which constitute the subject matter of the procurement, and in a way that is not contrary to the imperative provisions set forth in Laws #4734 and 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.

Prequalification Specifications
Article 21- The contracting entities shall prepare the prequalification specifications on the basis of "Standard Prequalification Specification Applicable for the Works Procurements Through the Restricted Procedure" annexed to this Regulation hereby in case of holding the procurements through the restricted procure. 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 #4734 and #4735 and the other imperative 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 works, which constitute the subject matter of the procurement, and in a way that is not contrary to the provisions set forth in Laws #4734 and 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 22- The technical specification indicating the technical details and requirements, and the project of the works to be performed 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, but 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 works, which constitute the subject matter of the procurement, are prepared by the contracting entities. However, the technical specifications may be got prepared through the procurement in compliance with the provisions of Law #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 works to be performed.

Contracts
Article 23- The contracting entities shall take the Standard Contract, which is suitable for the type of tender, as basis annexed to this Regulation in preparing the draft contract within the scope of the tender document in view of the type of works.

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 #4734 and #4735 and the other imperative legislation according to the nature of works.

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

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

Taking Approval for Procurement
Article 24- 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 procurement approval certificate (standard form KIK001.0/Y) and this approval certificate shall be approved by the contracting officer.

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

Formation of tender commission and principles of activity
Article 25- (Amended: 08/06/2004 – 25486 Official Gazette / Article The contracting officer shall form the tender commission within three days at the latest following the date of first proclamation or solicitation as per Article 6 of Law #4734 to hold the procurement. 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 procurement, 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 procurement, the members may be taken to the commission from the contracting entities within the scope of this Law.

All evaluations in the procurement 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.

Procurement proceedings dossier
Article 26- The contracting entity shall issue a proceedings dossier for each work to be tendered. This dossier shall contain all documents related to the procurement 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 #4734 has been deposited to the bank account of the Public Procurement Authority.

Each copy of the procurement 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 Procurement and Prequalification
Article 27- (Amended: 08/06/2004 – 25486 Official Gazette / Article 9) The procurement and prequalification proclamations concerning the works procurements 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 procurements, the estimated cost of which is equal to or exceeding the threshold values set forth in Article 8 of Law #4734;
1) The proclamations of procurements to be held through the open procedure shall be made at least forty days prior to the date of procurement;
2) The prequalification proclamations of procurements 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 procurements to be held through the negotiated procedure shall be made at least twenty five days prior to the date of procurement;
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 procurement to the candidates that are found to be qualified as a result of the evaluation for prequalification in the procurements to be held through the restricted procedure.
b) In respect of the procurements, the estimated cost of which is below the threshold values set forth in Article 8 of Law #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 #4734, shall be proclaimed in at least two of the newspapers published at the place of procurement and work at least seven days before the date of procurement;
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 #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 procurement;
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 #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 procurement;
provided that they are published at least once.
In the procurements to be held through the restricted procedure, and the estimated cost of which is below the threshold values given under Article 8 of Law #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 procurements 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 procurement to the candidates that are found to be qualified.

The procurements 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 procurement 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 evidenced through minutes.

The contracting entity may also proclaim the procurements 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 procurement 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 procurement is a holiday, the procurement 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 procurement 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 proclamations for the procurements to be held through the negotiate procedure as per the cases set forth in paragraphs (b) and (c) of Article 21 of Law #4734. However, minimum three tenderers have to be invited to the procurement in this case (KIK004.1/Y).

Arrangement of proclamations for procurement and prequalification
Article 28- (Amended: 08/06/2004 – 25486 Official Gazette / Article 10) The proclamations for procurements shall be prepared in compliance with the standard procurement and prequalification proclamation forms drawn up according to the procurement procedure on the basis of the information included in the tender document (Standard Forms KIK002.0/Y, KIK003.0/Y and KIK004.0/Y).

   The arrangements to the information given in the proclamations for procurements 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 29- The proclamations that are not in compliance with the provisions set forth in Articles 27 and 28 of this Regulation hereby shall be invalid. In this case, the procurement 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 27 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 28, the procurement 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 30- (Amended: 08/06/2004 – 25486 Official Gazette / Article 11) 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 procurement purchase the copies of such document, each page of which is approved by the contracting entity (standard form KIK005.0/Y). 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 procurement 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 31- It is essential that any amendment is not made to the tender and prequalification document after the procurement 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 procurement prior to the time of procurement
Article 32- In cases deemed necessary by the contracting entity or in cases where the matters that hinder holding the procurement in the documents comprising the tender document and that are not possible to be corrected, the procurement may be cancelled prior to the time of procurement.

In this case, cancellation of the procurement shall be immediately notified to the tenderers by indicating the reason of such cancellation. Cancellation of the procurement shall be notified separately to those that have already submitted tenders until such stage. If the procurement 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 procurement.

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


CHAPTER TWO
Qualification for Participation in Procurement

SECTION ONE
General Provisions

Principles for determination of qualification
Article 33- 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.

(Amended: 08/06/2004 – 25486 Official Gazette / Article 12) 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 works, which constitute the subject matter of the procurement.

   (Amended: 08/06/2004 – 25486 Official Gazette / Article 12) 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 procurement, the letter of invitation shall be deemed invalid.
   
   Documents Required
   Article 34- 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 works procurements, the estimated cost of which is below the threshold value stipulated under paragraph (c) of Article 8 of Law #4734;

1) The documents obtained from the banks concerning the financial status of the tenderer;
2) The documents evidencing that the tenderer continues his professional activities and is authorized to submit tenders;
3) The documents indicating the experience of the tenderer in the works, which constitute the subject matter of the procurement, or similar works;
are compulsory to be required by the contracting entities.

   However, in respect of the works procurements, the estimated cost of which is below the upper limit stipulated for the works procurements set forth in sub-paragraph 2 of paragraph (b) of Article 13 of Law #4734 though below the threshold value set forth under paragraph (c) of Article 8 of Law #4734, only the documents evidencing that the tenderer is acting as registered to the associated chamber as per the pertinent legislation and is legally authorized to submit tenders shall be required. The contracting entity may require the other documents set forth in this Regulation in view of the nature of the work.

(b) In respect of the procurements of works, the estimated cost of which is equal to or exceeding the threshold value stipulated under paragraph (c) of Article 8 of Law #4734;
1) The documents concerning the financial status of the tenderer as obtained by banks;
2) The balance sheet or parts of the balance sheet deemed necessary and which are compulsory to be released as per the pertinent legislation, or if not any, the equivalent certificates;
3) (Amended: 08/06/2004 – 25486 Official Gazette / Article 13) The documents indicating the business volume and total turnover of the tenderer as well as the quantity of works  ongoing and completed in relation to the work, which is the subject matter of the procurement;
4) The documents evidencing that the tenderer continues his professional activities and is authorized to submit tenders;
5) The documents indicating the experience of the tenderer in the works, which constitute the subject matter of the procurement, or similar works.

   Besides the documents listed hereinabove, it shall be determined by the related contracting entity on which of the other documents set forth in Article 10 of Law #4734 shall be required and used in evaluation of qualification in compliance with the nature of the work, which constitutes the subject matter of the procurement, and within the framework of the principles provided under this Regulation.

   (Annex: 08/06/2004 – 25486 Official Gazette / Article 13) Furthermore, the contracting entities shall require from the tenders to attach the amounts concerning the items and/or work groups comprising the tender price and the related unit prices and the analyses suitable for the construction requirements defined by the contracting entity concerning these prices and the estimation schedule indicating the tender price in respect of the turn key lump sum works, and the analyses suitable for the construction requirements defined by the contracting entity concerning the prices proposed for evaluation of the abnormally low tenders and implementation of the contract.

Way of Submitting Documents
Article 35- (Amended: 08/06/2004 – 25486 Official Gazette / Article 14) 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 procurement 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 procurement.

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.

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 as per 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 #4734 as per 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 physical body, 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 36- 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 10 % of the tender price (standard forms KIK030.0/Y and KIK030.0.1/Y).

(Amended: 08/06/2004 – 25486 Official Gazette / Article 15) 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 37- In the procurements with an estimated cost equal to and exceeding the threshold value, the tenderer has to submit the end-of-year balance sheet for the year prior the year when the procurement is held or the parts of the balance sheet deemed necessary, otherwise the equivalent documents.

   In the procurements where the estimated cost is below the threshold value, the end-of-year balance sheet for the year prior the year when the procurement is held or the parts of the balance sheet deemed necessary, otherwise the equivalent documents may be required.

   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 (in the calculation, the contract progress costs shall be deducted from the current assets and the contract progress incomes shall be deducted from the short term liabilities);
   b) The equity ratio showing the extent of shareholders' equity within the assets (shareholders' equity / total assets) must be minimum 0.10 (in the calculation, the contract progress costs shall be deducted from the total assets);
   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. (Annex: 08/06/2004 – 25486 Official Gazette / Article 16) In the balance sheets submitted, it is compulsory to indicate the contract progress costs and the contract progress incomes.

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

Documents indicating the business volume of tenderer

   Article 38- (Amended: 17/02/2005 – 25730 Official Gazette / Article 1) In the procurements with an estimated cost equal to and exceeding the threshold value, the contracting entities shall require and the tenderers shall submit the income statement showing the total turnover of the tenderer for the last three years before the year, in which the procurement is held, and the progress payment reports and the similar documents showing the amount of work undertaken and completed by the tenderer in relation to the works constituting the subject matter of the procurement.

(Amended: 17/02/2005 – 25730 Official Gazette / Article 1) In the procurements with an estimated cost below the threshold value, the contracting entities may require the income statement showing the total turnover of the tenderer for the last three years before the year, in which the procurement is held, and the progress payment reports and the similar documents showing the amount of work undertaken and completed by the tenderer in relation to the works constituting the subject matter of the procurement. In this case, the tenderers have to submit either of such two documents.

In the calculation of the amount of works undergoing and completed in relation to the works, which constitute the subject matter of procurement, the total incomes obtained from the activities of the tenderer in the construction sector either within or out of the country shall be taken into consideration.

   In cases where such documents are required, the average of the last three years must not be less than 15% of the price to be proposed by the tenderer for total turnover and 12% of the price to be proposed by the tenderer for incomes from the works.

   (Amended: 17/02/2005 – 25730 Official Gazette / Article 1) The tenderer that complies with either of these criteria and that submits the document evidencing such compliance shall be satisfactory.

   The tenderers that do not meet these requirements within the last three years may submit the document up to the last six years; in this case, it shall be checked if the minimum values are met over the average of the years, for which the documents are submitted.
      
   The income table submitted and the documents showing the incomes relating to the amount of works undertaken and completed concerning the works, which constitute the subject matter of the procurement, have to be approved by the certified financial consultant, independent accountant & financial consultant or the tax office.

   (Amended: 17/02/2005 – 25730 Official Gazette / Article 1) 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.

(Amended: 17/02/2005 – 25730 Official Gazette / Article 1) 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: 17/02/2005 – 25730 Official Gazette / Article 1) 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 annual income from works, which constitute the subject matter of the procurement. Each of the joint venture partners has to present either of the two documents submitted and meet the criteria stipulated for the document submitted in proportion to his share in the joint venture.
   
(Amended: 08/06/2004 – 25486