Council of State, within the scope of Kanal Istanbul transition HalkalıHe found it unlawful to bid for the railway line to be built between Ispartakule and Ispartakule by bargaining method.
According to the news of Alican Uludağ from Deutsche Welle Turkish;“The 13th Chamber of the Council of State, within the scope of the Kanal Istanbul project”Halkalı-Ispartakule Inter-Railway Line Construction” tender was found to be unlawful and canceled. In the decision, which stated that the necessary clarity and competition were not provided in the tender made with the "negotiation method" method, it was emphasized that the tender did not meet the "immediacy requirement" sought in the 21/b paragraph of the Public Procurement Law.
The Council of State, noting that the decision has a "final quality", ruled that the "way of rectification" was also closed.
Ministry of Transport and Infrastructure General Directorate of Infrastructure Investments,Halkalı- Within the Scope of Kapikule New Railway Construction Halkalı-Ispartakule (Canal Istanbul Crossing) Railway Line Construction and Supply and Construction of Electromechanical Systems” tender was held on 28 June 2021.
Within the scope of Article 4734/b of the Public Procurement Law No. 21, which is applied in the tender in cases such as natural disasters, epidemics, danger of loss of life or property, or in situations that are special in terms of construction technique, the bargaining method method was applied without an announcement. The construction work, which is the subject of the tender, has been shown among the works that must be done as "urgent".
In this context, the Ministry invited 9 companies to the tender, while 5 companies submitted bids. The most economically appropriate offer came from the Gülermak-Yapı and Yapı-Taşyapı partnership for a price of 3 billion 111 million 362 thousand 15 TL. This partnership won the tender. The said line was planned to be constructed in the form of a double tube tunnel, which will pass under the Küçükçekmece Lake and the Kanal Istanbul project to be built in the future.
However, Modifalt Construction Machinery Industry and Trade Ltd. Şti, filed a lawsuit claiming that it is against the law not to do the work with open tender. Ankara 18th Administrative Court rejected the request for cancellation of the tender on 14 October 2021. Emphasizing that the work is a special one in terms of construction technique and that the condition of urgency is fulfilled, the court argued that there is no illegality in bargaining. However, the plaintiff company appealed against this decision.
Defense sent by the Ministry
The Ministry, which sent a defense to the Council of State, stated that the tender was special in terms of construction technique and claimed that the procurement period of special technological / technical equipment was long.
HalkalıStating that the Kapikule railway line is planned to be opened as a single integrated railway system with all its phases, the Ministry argued that otherwise the completed parts of the project run the risk of being idle. The Ministry also noted that the construction of this line section, which houses the tunnel, and the training of other works were undertaken by the administration in the loan agreements of the ongoing works.
The Council of State canceled the tender.
The 13th Chamber of the Council of State, which discussed the objection, ruled unanimously to cancel the action in question and to annul the decision of the administrative court. The Council of State wrote in the decision that the "correction path" was also closed against the "conclusive" decision.
In the justification of the decision, "urgent", which is one of the conditions that must be sought together with these, regardless of the conditions listed in subparagraph (b) of Article 21, in order for the bargaining procedure to be applied, means the shortest possible time for both the completion of the tender process as soon as possible and the public service of the subject matter of the tender not to be interrupted. It has been stated that the same condition will be sought in the works that are claimed to be completed in a timely manner and to have features in terms of construction technique.
In this respect, the decision emphasized that the determination of the completion time of the work subject to the case as “1170” days is incompatible with the urgency requirement and stated that “The reasons for the defendant administration to make a tender with the bargaining procedure are valid for the bargaining procedure, which is an exceptional method, considering the fact that the duration of the work is determined as 1170 days. It is understood that it cannot be seen as a reason”.
“There is a public interest in ensuring competition”
In this respect, in the decision, where it is stated that it is necessary for the public interest to ensure openness and competition in order to meet the needs in the best way, under suitable conditions and on time, Since it was concluded that there was no lawfulness in the realization of the case, there was no legal right in the decision of the Administrative Court to reject the case.
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