ADMINISTRATIVE CONTRACTS AND PUBLIC PROCUREMENT LAW: SCOPE, TYPES AND THE PRINCIPLE OF TRANSPARENCY

Administrative Contracts and Public Procurement Law

Administrative contracts are agreements concluded between a public administration and another party for the purpose of providing public services. In these contracts, the administration typically purchases a good or service, commissions a job, or transfers a right to another party. Similar to private law contracts, administrative contracts arise from the mutual consent of the parties, but are subject to the specific rules of public law.

The most important characteristic of administrative contracts is that one of the parties is the administration. The other party may be a private individual (natural or legal person). The subject of the contract is usually something of public interest, such as the performance of a public service, the purchase of goods, or the commissioning of a job. The administration generally holds a superior position in these contracts and has more say in determining the terms of the contract.

The basic characteristics of administrative contracts are as follows:

• Parties: One party is the administration (state, public institution or organization), the other party is a private legal entity.
• Subject: Matters of public interest such as the provision of public services, procurement of goods, and contracting.
• Legal Nature: They are subject to administrative law rules.
• Dispute Resolution: Resolution in administrative courts.
• The Superior Position of the Administration: The administration has more say in determining the terms of the contract.

Types of Administrative Contracts

Administrative contracts are contracts subject to private law rules, to which the administration is a party, and which are made for the purpose of carrying out public services. These contracts are divided into different types according to their subject matter and content.

General Types of Administrative Contracts

• Public Service Concession Agreement:
  • Definition: This refers to the awarding of a public service to a private individual for a specific period. For example, awarding a bus service to a company.
  • Characteristics: The concessionaire is obligated to provide the public service. The administration, in turn, oversees the regular and uninterrupted provision of the service.
• Financial Concession Agreement:
  • Definition: This refers to the outsourcing of public works to the private sector. For example, awarding the contract for building a road to a construction company.
  • Characteristics: The private sector is obligated to complete the work within the specified time and conditions. The administration, on the other hand, monitors whether the work is done correctly and completely.
• Public Loan Agreement:
  • Definition: This refers to borrowing by the state or public institutions. For example, a municipality taking out a loan from a bank.
  • Characteristics: The government is obligated to repay the debt within a specified period and interest rate.
• Administrative Services Contract:
  • Definition: This refers to the outsourcing of services needed by the administration. For example, a municipality contracting out its cleaning services to a private company.
  • Characteristics: The private sector is obligated to provide the specified services at the specified quality and within the specified timeframe.
• Joint Deposit Agreement:
  • Definition: This refers to an administrative body entrusting an asset or right to another party. For example, a municipality entrusting a park to an association.
  • Characteristics: The person entrusted with something is obligated to protect and use the entrusted property or right.
• Mining Concession Agreement:
  • Definition: This refers to the transfer of operating rights of state-owned mines to the private sector.
  • Characteristics: The concession holder operates the mine under specified conditions and pays a fixed share to the state.
• Forestry Management Agreement:
  • Definition: This refers to granting the right to manage forests to the private sector.
  • Characteristics: The concession holder operates the forest under specified conditions and pays a certain share to the state.

In summary, administrative contracts are agreements where the administration collaborates with the private sector in the performance of public services. The types of these contracts vary depending on the subject matter and the roles of the parties. However, the common goal of all these contracts is to serve the public interest.

Public Procurement Law

Public procurement law is the branch of law that determines the principles and procedures to be applied in tenders organized by public institutions and organizations to procure goods, services, and construction works they need. This branch of law aims to ensure the effective and efficient use of public resources, increase competition, and provide transparency.

Law No. 4734 on Public Procurement constitutes the fundamental legislation regarding public procurements in Türkiye. This law contains detailed regulations on issues such as the procedures for conducting tenders, the conditions that bidders must meet, and the principles to be followed in the tender process. Public procurement law is not limited to a single law; it is a dynamic structure that is constantly evolving through judicial decisions, regulations, and circulars.

Public tenders are generally conducted through either open tender or restricted tender procedures. Fundamental principles such as equality, transparency, competition, and public interest are observed throughout the tender process. The aim is to evaluate all bidders under equal conditions and select the most suitable offer. Public procurement law also includes important regulations to prevent and combat irregularities that may arise in tender processes.

The importance of public procurement law:

• Efficient use of public resources: Goods and services are procured at the most favorable prices through tenders.
• Increased competition: A large number of companies participating in the tender leads to lower prices and improved quality.
• Ensuring transparency: Transparency is ensured by conducting tender processes in full public view.
• Preventing corruption: Transparency and oversight in tendering processes reduce the risk of corruption.

In conclusion, public procurement law is a branch of law that serves important purposes such as the efficient use of public resources, increasing competition, and ensuring transparency. This branch of law is of great importance to both public institutions and private sector representatives.

The Relationship Between Administrative Contracts and Public Procurement Law

Administrative contracts are generally signed at the end of a process carried out according to public procurement procedures. The procurement process is organized to determine under what conditions and from whom the administration will obtain the goods or services it needs. A contract is signed with the private sector organization that submits the most suitable offer as a result of the tender.