Upon the call of Istanbul Metropolitan Mayor Ekrem İmamoğlu, dozens of lawyers filed a lawsuit in the Regional Administrative Court for the cancellation of the tender of Haydarpaşa and Sirkeci station areas made by TCDD. The lawyers filed a criminal complaint with the Istanbul Public Prosecutor's Office about the tenderers.
Istanbul Metropolitan Municipality Mayor Ekrem Imamoglu, ait belonging to the people of Istanbul, very spiritual places for Istanbul, ”Haydarpasa and Sirkeci Station areas tender to eliminate the Istanbul Metropolitan Municipality has been moved to the tender. İmamoğlu said that he aims to win these areas to be used for culture and arts and to prevent a new betrayal in Istanbul and that he will not follow the process in an ordinary way and he wants those who want to see this to look into the eyes of the 23 June results. Imamoglu urged everyone to take office on this issue, acting dozens of lawyers, applying to the District Administrative Court asked for the cancellation of the tender. The lawyers then filed a criminal complaint with the Istanbul Chief Public Prosecutor's Office about the tenderers.
BARGAINING MEETING WITH SINGLE COMPANY
TCDD made a tender for 29 thousand liras for monthly rent on 4 October in order to lease the idle storage areas of approximately 30 thousand square meters belonging to Haydarpaşa and Sirkeci stations "not to be used in commercial activities". In the tender in which four companies participated, the consortium consisting of İBB's affiliated companies Kültür AŞ, İSBAK, Metro İstanbul and Medya AŞ and Hezarfen Consulting Limited Company remained in the final. The IMM consortium offered 100 thousand TL and Hezarfen Consultancy offered 300 thousand TL per month. The tender commission announced that the parties will be called for negotiations within 15 days. At the end of the 15-day period, the Tender Commission announced that the tender was paid to this company after the bargaining meeting that it invited only Hazerfen Consultancy Company, for a rental fee of 350 thousand TL. This result was sent to IMM, which was not invited to the negotiation phase, by fax. İBB President Ekrem İmamoğlu stated that he will follow the process on behalf of the people of Istanbul, making an objection to the conclusion of beer, and said that all Istanbul lawyers can also contribute to the objection to be made by İBB lawyers.
LAWYERS ACCORDING TO IMAMOGLU'S CALL
The lawyers who started the judicial process on this summit of Imamoglu today argued that the tender on October 14 resulted in contradiction with the legal regulations, public administration and the administrative saving approach in favor of the public and the interests of Istanbul and 16 million Istanbulites. The lawyers of IMM stated that TCDD had made a big mistake and based the reasons for cancellation and criminal complaints:
“TCDD is a Public Economic Enterprise established with the Decree Law No. 233 (Decree Law). According to this Decree, it is not subject to the provisions of the General Accounting Law and the State Procurement Law and the audit of the Court of Accounts.
because it is not subject to State Tender Law, TCDD lease contracts, issued on the basis of the said Decree Law 'Republic of Turkey State Railways Immovable Rent Regulation on the Directorate General' is done based. The tender of Haydarpaşa and Sirkeci station areas was also made in accordance with the Closed Bidding Procedure specified in the Regulation. In the Regulation, although the provisions regarding other tender procedures are bound by the rule that 'negotiation procedure can be applied in cases where the result cannot be obtained or not enough willing,' such an opportunity is not foreseen for the 'Closed Bidding Procedure'. In the 40th article of the Regulation, at the end of the 'Closed Bid Procedure', it is stipulated what kind of decisions TCDD can take and among these, there is no continuing the tender according to the negotiated procedure. In terms of Administrative Law, it is understood that there is a 'substantial procedural disability' here. At the end of the tender on October 4, it was announced by the commission that the business partnership formed by IMM Affiliates and Hezarfen Consulting Limited Company would be invited to negotiate with a 15-day period. However, on the day of the negotiation, the business partnership formed by İBB Affiliates was excluded from the tender and the tender was awarded to Hezarfen Danışmanlık Ltd.Şti. TCDD Tender Commission has also called the consortium of IMM Affiliates for negotiation. This means that the Tender Commission considers the IMM Affiliates Consortium sufficient for the tender. Later, if the partnership of IMM Affiliates is found insufficient, it means that the Commission takes a second action against the first transaction. This is a typical 'SUBJECT' element disability in terms of Administrative Law. There are Decisions of the Council of State in this direction. ”
CANCELLATION JUSTIFICATION AGAINST LAW
2- In the decision of the TCDD Tender Commission to eliminate the IMM Consortium, the following points are noteworthy: - 'Not each of the tenderers who are joint ventures have submitted a' work experience certificate ', -' The term 'jointly and jointly' instead of 'joint and joint liability' is written in the contract of the partnership. ', -' 19 of the Association Agreement. Article (c) of the article, the provisions of the partnership agreement, the contracts to be made after the tender and the tender documents are given a statement that superior '.
These three reasons are unlawful for only three reasons:
A- There is no obligation in this respect in the specification. The search for a separate work experience document is the interpretation of the commission and is not based on any rule of law. At this point, the following information is also important: While the 4.000.000,00 TL work experience certificate is required in the specification, Kültür AŞ. Has presented 274.798.951,77 TL as the last one year work experience certificate. The decision to exclude tenders is unlawful, based on the obligation to seek work experience certificates in other companies. It is also noteworthy that the 38 of the TCDD Leasing Regulation. According to the article, 'tender envelopes are opened if the tender adequacy' means. The tender envelope of IMM was opened in the tender held on October 4 since the documents were deemed sufficient. However, in the second tender of 18 October, it was decided to be eliminated. This is clearly unlawful practice.
B- Searching for the phrase 'joint and several' as a validity condition is against the 'HONESTY' rule, which is one of the most basic legal principles. In addition, Article 19 of the Code of Obligations states, "In determining and interpreting the type and content of a contract, or that they use to hide their true purpose sözcüRegardless of the rules, their real and common will will be taken as basis ”. C- The contract between the persons forming the partnership binds only the partners. It does not bind TCDD, which is a third person. For this reason, the view that the contract is superior to TCDD and tender documents lacks a legal basis. Another important warning should be made as follows: According to the 'TCDD Immovable Lease Regulation', if those who do actions that will eliminate the competition in the tender and reduce the hesitation of the tenderers, the tender It is clearly arranged that it will deteriorate. The meetings of Hezarfen Consulting Company representatives with the Ministry to which the tender commission is affiliated were reported in the press. Following these negotiations, the tender should have been canceled and a new tender opened. Failure to comply with this is a 'fundamental procedural' disability according to the Administrative Law.
LEGAL DUTY OF IMM
3- While the tender process continues, Istanbul Metropolitan Municipality applies to TCDD for direct lease by bargaining in accordance with Article 5216 / o of the Metropolitan Municipality Law No.7 and Article 3 of the Regulation on Lease of Immovable Goods with Historical and Physical Value. made; However, this request was rejected as well. Sub-paragraph (o) of Article 5216 of the Metropolitan Municipality Law No.7 assigned the duty of 'protection of historical texture and places and functions that are important in terms of city history' to the Metropolitan Municipalities. It is the duty of the IMM to protect the immovable properties that are subject to Haydarpaşa and Sirkeci Station Tender, which have the qualifications specified in the law. The administrative procedure to open a lease tender in violation of this legal regulation is essentially against the law. Against the 'rejection decision', an annulment lawsuit will be filed in the administrative court, with a request to stop the execution.
EQUIPMENT OBJECTIVE NO RESPONSE
4- In the tender, we objected to the equipment documents amounting to TL 20.000.000,00 submitted by Hezarfen Limited Company on the grounds that it does not meet the requirements; however, no response was given by TCDD administration to this objection. In addition, since the technical inventory of the IMM Consortium is sufficient, a qualifying reason is not applicable. On the other hand, as stated in our appeal; It is also important that Hezarfen Consultancy Company's VAT inventory does not carry the provisions in the specification; because the calculation should have been done without VAT. ”
WORD GAMES AGAINST HONESTY RULES
In the summary they made at the end of their applications, IMM lawyers emphasized the following: “The purpose of establishing a joint venture is to fully fulfill the tender conditions. Therefore, it is against the purpose of the joint venture to expect each partner to provide a work experience certificate. In addition, the business partnership agreement cited as justification has been signed between the municipality's affiliates and is only binding for the signatory parties. The Tender Commission's purely interpretative sözcük games are against the honesty rule. For the reasons we have stated, both the cancellation cases were filed for the suspension of execution in the Administrative Judiciary and a criminal complaint was filed to the Anatolian Chief Public Prosecutor's Office about those responsible for the tender.