Filing a Legal Referendum in Build-Operate-Transfer (BOT) Projects: Draft Petitions and Examples

Build-Operate-Transfer (BOT) projects are generally long-term contracts that foresee the construction and operation of public services by the private sector. These contracts define the rights and obligations between the administration (e.g., municipality) and the private sector. Even if the municipality changes, the contract does not automatically terminate; the new municipality takes over all the rights and obligations defined in the existing contract and becomes responsible for the continuation of the project. Thus, the project can be sustained without interruption.

Citizens or investors may appeal to administrative courts if they encounter the following situations in contracts signed with the administration within the scope of PPP projects:

• Failure of the administration to fulfill the obligations stipulated in the contract,

• Failure to provide the wages or income rights guaranteed in the contract,

• Failure to deliver the land, infrastructure, or necessary facilities in accordance with the contract.

In these cases, the investor may file an administrative lawsuit to protect their rights regarding the project and ensure the implementation of the contract.

a) Failure of the Administration to Fulfill the Obligations of the Contract

If the municipality or administration fails to fulfill its obligations as stipulated in the PPP (Public-Private Partnership) contract, the investor can appeal to the administrative courts to enforce the contract or claim compensation.

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Sample Petition Template:

… TO THE PRESIDENCY OF THE ADMINISTRATIVE COURT

Plaintiff: [Name, Surname, Turkish ID Number / Company Name]
Defendant: [Municipality / Public Institution]
Subject: Lawsuit Regarding Non-Fulfillment of Obligations Under the Build-Operate-Transfer Contract

Explanations:
1. A Public-Private Partnership (PPP) contract was signed between the plaintiff and the defendant administration on [date].
2. The defendant administration failed to fulfill its obligations stipulated in the contract.
3. This situation has resulted in financial and operational losses for the plaintiff.

Legal Grounds: Law No. 2577 on Administrative Procedure, Law No. 6100 on Civil Procedure, and relevant legislation.

Conclusion and Request:
I respectfully request that a decision be made to take the necessary steps to remedy the aforementioned violation and to enable the administration to fulfill its contractual obligations.

Date: …
Plaintiff: …
Signature: …

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When is it used?

• When a municipality or administration fails to fulfill its construction, maintenance, or operation obligations stipulated in a BOT (Build-Operate-Transfer) contract.

• In cases such as the investor or company failing to start the project on time or incurring losses during the operating period.

In what situations is it valid?

• Failure of the administration to fulfill its obligations while the contract period is still in effect.

• Failure to implement the contract terms due to delays or negligence on the part of the administration.

b) Non-implementation of Revenue or Demand Guarantees

If the administration fails to fulfill the revenue or demand guarantees it has committed to in the contract, the investor may file a full judicial review case in administrative courts.

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Sample Petition Template:

… TO THE PRESIDENCY OF THE ADMINISTRATIVE COURT

Plaintiff: [Company Name / Full Name]
Defendant: [Municipality / Public Institution]
Subject: Lawsuit Regarding Failure to Fulfill Revenue Guarantee Obligation

Explanations:
1. According to the PPP contract dated …, the defendant administration guaranteed a revenue of … TL.
2. The defendant administration failed to fulfill the guarantee on time.
3. This situation has caused economic damage to the plaintiff.

Legal Grounds: Law No. 2577 on Administrative Procedure, Law No. 6100 on Civil Procedure, and relevant legislation.

Conclusion and Request:
I request that a decision be made to take the necessary steps to ensure the fulfillment of the income guarantee and compensation for the damages.

Date: …
Plaintiff: …
Signature: …

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When is it used?

• When the administration fails to pay the revenue guarantee or traffic/demand guarantee committed in the PPP contract.

• Example: When highway toll guarantees, electricity supply guarantees, or passenger guarantees are not fulfilled.

In what situations is it valid?

• Failure to fulfill the income guarantee obligation on time and in full.

• The investor suffered a financial loss and demanded compensation for that loss.

c) Failure to Hand Over Land or Infrastructure

If the administration fails to deliver the land or infrastructure specified in the contract to the investor, the investor can request enforcement of the contract through administrative courts.

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Sample Petition Template:

… TO THE PRESIDENCY OF THE ADMINISTRATIVE COURT

Plaintiff: [Company Name / Full Name]
Defendant: [Municipality / Public Institution]
Subject: Lawsuit Regarding Failure to Transfer Land

Explanations:
1. According to the Build-Operate-Transfer (BOT) contract dated ..., the defendant administration is obligated to deliver the investment area to the plaintiff.
2. The defendant administration failed to deliver the land on time.
3. As a result, the investment could not be initiated, causing economic losses.

Legal Grounds: Law No. 2577 on Administrative Procedure, Law No. 6100 on Civil Procedure, and relevant legislation.

Conclusion and Request:
I request that a decision be made to deliver the investment area and fulfill the contractual obligations.

Date: …
Plaintiff: …
Signature: …

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When is it used?

• In the event that the land or infrastructure designated for investment in the BOT (Build-Operate-Transfer) contract is not delivered to the investor on time.

• Example: When the necessary land or infrastructure is not provided for airport, port, or power plant projects.

In what situations is it valid?

• Delay or failure to deliver the land or infrastructure in violation of the contract.

• Circumstances that prevent the commencement of an investment or the operation of a business.