Abstract
The public procurement system was flawed and politicized from within when it was governed under the deficient State Procurement Law (SPL). It thus led to many irregular and illegal practices and paved the way for corrupt transfers. With the pull of the EU–IMF–WB nexus, a new PPL that enforced transparency, competitiveness, accountability, and de-politicization was enacted in 2003. Yet, when the domestic political settlement has changed with the triumph of AKP, public procurement system has been re-politicized by the AKP majority government via more than 150 legal amendments. Many of these amendments exempted the procurements of the specific institutions from the scope of the Law, paved the way for the use of less competitive methods, and dismantled the checks and balances over public spending.
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Notes
- 1.
The list of procurements can be found in Anayasa Mahkemesi Yuce Divan Karari E.2004/4 K.2007/7.
- 2.
Article 53 of the PPL states that “The Authority is independent in fulfillment of its duties. No organ, office, entity or person can issue orders or instructions for the purpose of influencing the decisions of the Authority.”
- 3.
The revenues of the PPA was stated in PPL the as follows: (1) a percentage share of the contract prices to be collected from the contractors; (2) appeal application charge to be collected from the complaint lodgers; (3) revenues from activities such as training programs, courses, seminars, and meetings; (4) revenues to be obtained from all kinds of printed papers, forms, announcements, documents, and publications; (5) financial support from the general budget, when necessary (PPL, Article 53). The first source of income of the PPA (percentage share of the contract prices) was led to a legal battle between the PPA and the MPWS which argued that such a source of income was unjust, inappropriate, and unacceptable (see, “İhale Kurumu Bakanlık ile Mahkemelik Oldu,” Zaman, October 24, 2002).
- 4.
The Public Procurement Board was composed of ten members appointed by the Council of Ministers from candidates proposed by the Ministry of Finance (2), the Ministry of Public Works and Settlement (3), the Court of Accounts (1), the Council of State (1), the Undersecretariat of Treasury (1), the Union of Chambers and Commodity Exchanges of Turkey (TOBB) (1) and the Turkish Confederation of Employer Associations (TISK) (1).
- 5.
Article 53 of the PPL states, “The Authority is independent in fulfillment of its duties. No organ, office, entity or person can issue orders or instructions for the purpose of influencing the decisions of the Authority.”
- 6.
In the negotiated procedure, advertisement of tender notice was not even required.
- 7.
For an introduction of the term “Islamic counter-elite” for Turkey see Göle (1997): 46.
- 8.
The laws and decrees in the force of law can be found in the PPA’s website (http://www.ihale.gov.tr/Mevzuat.aspx).
- 9.
Indeed, the law authorized the use of negotiated procedure with no publicity requirement in cases of unexpected and unforeseen events such as natural disasters, epidemics, risk of losing lives or properties, or events that could not be predicted by the contracting authority (PPL, Article 21).
- 10.
These requirements were stipulated in fifth and sixth paragraphs of the Article 5 and (a) and (b) subparagraphs of Article 62.
- 11.
These requirements stated in sub-paragraph (c) of Article 62 of the reformed PPL.
- 12.
Interview with Sener Akkaynak, founder and the former president of the PPA.
- 13.
Recently, a draft alignment strategy for public procurement setting out milestones for full alignment with the acquis has been adopted. The draft law standardizes procedures for public–private partnership models in terms of tendering, risk sharing, project assessments, and dispute resolution. According to the draft law, a central unit for the public–private partnerships would be established as the General Directorate of Public–Private Cooperation, supervising public entities, assessing feasibility reports and project contracts, and implementing projects. Yet, the law has not been started to be implemented.
- 14.
Law Nos. 4964, 5148, 5226, 5312, 5583, 5726, 5737, 5784, 5812, 5917, 6093, 6111, 6288, 6353, 6461, and 6475.
- 15.
Article 3 of the PPL, various clauses.
- 16.
With the Primary Education and Education Law (Law No. 6287), a provisional article has been added into the PPL about the FATİH education project.
- 17.
See The Law on Renovating, Conserving, and Actively Using Dilapidated Historical and Cultural Immovable assets (Law no. 5366).
- 18.
Law on the Health Services (Law no. 3359) as amended by Law no. 5396.
- 19.
Stipulated in the Foundations Law (Law no. 5737).
- 20.
Stipulated in Law on Istanbul 2010 European Capital of Culture (Law no. 5706).
- 21.
Law on Eskişehir 2013, Cultural Capital of the Turkic World.
- 22.
Stipulated in the Law on EXPO 2016 Antalya (Law no. 6358).
- 23.
Stipulated in “2009 Yilinda İstanbul Şehrinde Yapilacak Beşinci Dünya Su Forumunun Organizasyonu ile Katma Değer Vergisi Kanununa Bir Geçici Madde Eklenmesine Dair Kanun” (Law no. 5804).
- 24.
Stipulated in Law on Organization, Duties, and Powers of the ÖSYM (Law no. 6114).
- 25.
Stipulated in Law on Redevelopment of Areas under Disaster Risk (Law No. 6306).
- 26.
Some of the public procurement specific corruption scandals revealed by the media were as follows: “Milyonlar Tünele Kaçtı,” “İzmir Metrosunda Çıkış Görünmez Oldu,” “Okulda İhale Hatalı Çıktı,” “Üniversite Olimpiyatları,” “Kamer Genç,” “Kadir Topbaş’a Çifte Salvo,” “Bir Cepten Diğerine,” “Acele Giden Otobüs,” “Kapı Sorunu Çözüldü,” “Muratlarına Erdiler,” “İkramlı,” “İhalelerde Baskı,” “Herşey Kitabına,” “Türkiye Taş,” “145 ihale,” and “Fatih Projesi’nde vurgun!”
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Gürakar, E.Ç. (2016). Political Economy of Reform and Retrogression in the Public Procurement System: Third Party Enforcement Versus the Political Settlement in Turkey. In: Politics of Favoritism in Public Procurement in Turkey. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-137-59185-2_3
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