Contracts concluded by public institutions with real or legal persons operating in the private sector, through the procurement methods prescribed by law in order to meet their needs, are referred to as “public procurement contracts.”
As a method used in public procurement, the concept of tender (procurement) encompasses the entire process regulated under the laws governing public procurements and other relevant regulations and practices. It includes determining, among those who meet the necessary conditions for the tender, the bidder submitting the most suitable offer according to the nature of the work, and completing the process through the signing of an administrative contract following approval by the competent authority regarding the tender decision.
Procurement procedures to be applied are regulated under Articles 18 to 23 of the Public Procurement Law No. 4734 (KİK), in the First Chapter titled “Procurement Procedures and Their Implementation” of the Second Part titled “Procurement Process.”
Initially, four main procurement methods were adopted for public tenders (Art. 18):
Open tender procedure
Restricted tender procedure (among pre-qualified bidders)
Negotiated procedure
Direct procurement method
Subsequently, in order to ensure the sound conduct of public procurements and in response to administrative demands and observed practical needs—also taking international examples into account—amendments were made to the Law. The most significant change concerned the direct procurement method. Although it was originally introduced to enable administrations to meet small-scale needs more easily without being subject to other tender procedures, requirements such as concluding contracts even for very small procurements and seeking qualification criteria under Article 10 of the Law prevented the intended flexibility. Therefore, direct procurement was removed from being classified as a tender procedure and redefined as a procurement method, with its principles and procedures regulated under Article 22 of the Law.
The procedures and principles to be applied in tenders conducted by public institutions and organizations subject to public law, such as municipalities, are set out in detail in Law No. 4734. The procurement procedures stipulated in the Law are mandatory not only for construction works and goods procurement but also for service procurements.
In order to ensure the legality of processes related to public service procurements and to promote efficient and effective public service delivery, various principles have been developed worldwide—particularly in the European Union—based on established practices and positive legal norms. In this context, principles such as transparency, competition, equal treatment, reliability, confidentiality, public scrutiny, efficiency, prevention of corruption, timely fulfillment of needs under appropriate conditions, and efficient use of resources (Art. 5 of the Law) are adopted and implemented in Türkiye in line with the EU public procurement acquis.
Moreover, as provided in Article 26 of Directive 2014/24/EU, where it is understood that a new type of work, service acquisition, or development—different from what is available on the market—cannot be carried out through the procedures specified in the directive, an alternative procurement method may be permitted for such public contracts.
Likewise, even if a contract falls within the definition of a public procurement contract, certain contracts may be excluded from the scope of the classical procurement procedures provided in EU directives and in the Public Procurement Law due to their special nature. One reason for such exclusion is that the nature of the work under the contract may not allow compliance with the competitive conditions envisaged in the directives. Another category of exceptions applies to procurements concerning the performance of a specific work or service of a specialized character. In particular, in the acquisition of financial and legal services requiring special expertise and specialization, the application of special procurement methods may become inevitable. Exceptions are therefore recognized in such cases.
Furthermore, Directive 2014/24/EU provides that the “Negotiated Procedure Without Prior Publication” may also be applied in certain specific service contracts subject to public procurement, and this method is regulated as a procurement procedure (Art. 26/6).
The public procurement system in Türkiye has been fundamentally restructured by the Public Procurement Law. The key characteristics of the procurement system to be applied by administrations subject to public law principles are as follows:
All procurements of goods and services, as well as construction works, fall within the scope of the Law, while exceptions are limited.
Transparency, competition, reliability, public oversight, and efficiency in the use of resources are established as the main procurement principles.
Procurement procedures are regulated in alignment with the legislation and practices of the EU and other international institutions.
A publication obligation has been introduced for finalized procurement processes and decisions to enable public scrutiny.
New provisions specific to consultancy service procurements have been introduced.
Through the Public Procurement Authority, an effective administrative remedy mechanism has been established for complaints and other administrative objections concerning procurement processes.
For professional support in Public Procurement Law matters, you may contact Aykut Hukuk & Danışmanlık, which operates throughout Türkiye, particularly in İzmir.