ANKARA- TEPAV recently assessed the amendments introduced in the Procurement Law. The evaluation, emphasizing the fact that among the general rationales of the amendment was making positive contributions to the EU harmonization process, said, "Some articles of the Law introduced important amendments in compliance with the commitments of the mentioned harmonization process. On the other hand, it is observed that some articles that were in compliance with the EU legislation were cancelled and some areas which were covered in the Progress Report were not amended".
TEPAV Fiscal Monitoring Group has published an evaluation note with the title "What do the Amendments in the Public Procurement Law Mean?" The note stated that around 140 change in forms of additions, modifications and exemptions were introduced in the Public Procurement Act under total 54 legal regulations composed of 17 direct amendments and 37 indirect amendments (through other laws). The evaluation underlined that among the general rationale behind the amendment of the said law was to make positive contribution to the EU harmonization process, and stated that some important changes in line with the commitments of the said process were introduced for some articles of the Law. The evaluation also pointed out that, beside the mentioned changes, some articles, which were in compliance with the EU legislation and included in the initial version of the Law, were cancelled and some areas which were covered in the Progress Report were not amended.
The section addressing the amendments not in compliance to the EU legislation were pointed out as follows:
"Though all Progress Reports touched upon the high number of exemptions, this Law introduced more exemption rather than lowering the number of existing ones.
The scope of the Procurement procedure is expanded for certain bidders in a way not proportionate to the EU legislation. This expansion contradicts with competition and equal treatment principles.
By expanding the scope of direct procurement, the practice "direct procurement" as named in the EU terminology is not considered.
The scope of framework agreements is considerably different than the scope regulated by directives. This can result in significant problems if no limitations are introduced in the secondary legislation."
As regards the items that were not amended though covered in the Progress Reports, the evaluation said: "The definition ‘administration' as used in the Turkish legislation is criticized for its scope. However, in spite of these criticisms, a number of administrations were excluded from the scope. No studies were conducted in the area of privileges and utilities (the scope of the public service utilities includes energy, water, transportation and telecommunication sectors). Furthermore, criticisms that posting periods are too short were not taken into consideration".
The evaluation pointed out that although some were based on grounds such as ensuring EU harmonization and/or implementation flexibility, a significant part of the amendments included elements having political risk and maintained:
"Although this risk manifests itself in the article pertaining to scope cut-down and expanded articles, the rest of the articles imply that the Public Procurement Law has taken the form of tool to develop a capital accumulation model standing close to political administrations. It is obvious that at the implementation pillar of the model, local administrations and other public agencies and institutions taking part in construction works assume roles.
It is apparent that the disruption of the role of the founding principles of the Law; transparency and quality-competition in the Procurement processes by weakening public control will lead to significant challenges with respect to the rational use of public resources in line with the public interest.
Under these circumstances, it will not be pretentious to argue that, when the fact that political rent is backed by bureaucratic rent mechanism as well as the context of the amendments are considered, the risk of increased corruption and irregularities will come to the forefront."