Subject 21- Electronic Tender Law

tarafından | Eki 19, 2023 | Cyber Law | 0 yorum

Subject 21- Electronic Tender Law

  • Introduction

Electronic tendering refers to tenders where bids are received and declared electronically. The tenders to be held within this scope are made through the Public Procurement Authority. As of July 1, 2016, with the amendment made in the Official Gazette dated 27.05.2016, it started to be applied in public tenders at https://ekap.kik.gov.tr/EKAP/YardimEkran/EBeyan/default.aspx https://www.eihale.gov.tr/. 

With the amendment made in the Official Gazette dated September 13, 2019 and numbered 30887, electronic tendering has become applicable in all tender procedures.  On September 30, 2020, with the “Regulation Amending the Electronic Tender Implementation Regulation” published in the Official Gazette No. 31260 dated September 30, 2020, amendments were made to the Electronic Tender Implementation Regulation and the scope of the regulations on electronic tendering was expanded.

  • Some Definitions in the Electronic Tender Implementation Regulation
  • Atomic clock: The clock used by TÜBİTAK National Metrology Institute to measure time with minimum error,
  • e-key: Encryption and/or decryption data,
  • e-bid: A bid prepared electronically via EKAP and signed with e-signature by the bidder or authorized person or persons on behalf of the bidder,
  • EKİB : The Electronic Public Procurement Bulletin issued by the Authority where the announcements regarding the tenders are published in accordance with Article 53 and Additional Article 1 of the Law No. 4734,
  • ESHS: An electronic certificate service provider as defined in Law No. 5070 that provides services related to electronic certificates, time stamps and electronic signatures,
  • İKN: The tender registration number given to each tender registered through EKAP,
  • User: The person authorized by the platform responsible to carry out certain works and transactions in the tender process with the platform responsible,
  • Implementation Regulation: Implementing Regulation on Procurement of Goods Tenders, Implementing Regulation on Procurement of Services Tenders, Implementing Regulation on Construction Works Tenders, Implementing Regulation on Consultancy Service Procurement Tenders and Implementing Regulation on Framework Agreement Tenders published in the repeated Official Gazette dated 4/3/2009 and numbered 27159,
  • Timestamp: A record of electronic data authenticated by an ECSP with an e-signature in order to identify the time when it was generated, modified, sent, received and/or recorded,
  • Working day: Days excluding national holidays, general holidays and week holidays and including administrative leave days.
  • Tender Preparation Procedures
  • Approximate cost and requirement report

According to Article 8 (1) In tenders conducted through EKAP, the approximate cost prepared by the contracting authority shall be recorded in EKAP and kept encrypted until the announcement of the approximate cost.

According to Article 9, the contracting authority shall prepare a  requirementsreport on EKAP defining the nature, type and quantity of the procurement of goods or services or construction work subject to the tender, its parts if partial bidding is permitted in the tender, and, where necessary, the items of work before the other transactions in the tender process are carried out.

  • Tender registration and obtaining İKN, Document preparation

Tender registration according to Article 10; Before the preparation of the tender and/or pre-qualification document, a tender registration is made by the administration through EKAP. Each tender for which a tender registration is made shall be given an İKN and this number shall be used in all transactions related to the tender to be made through EKAP after this stage. In tenders with pre-announcement, the tender registration is made before the pre-announcement is prepared.

According to Article 11, document preparation takes place as follows: The contracting authority prepares and registers the tender and/or pre-qualification document via EKAP. In tenders open to foreign tenderers, documents may be prepared in languages other than Turkish. In this case, only the Turkish document is prepared through EKAP. The document prepared in a foreign language shall be uploaded to EKAP by the administration.

  • Administrative specification, pre-qualification specification, draft contract and draft framework agreement

Administrative specifications and/or pre-qualification specifications, draft contract shall be prepared by the contracting authority through EKAP based on the type administrative specifications, type pre-qualification specifications and type draft contract annexed to the relevant implementing regulation according to the type of procurement and the tender procedure to be applied. For the procurement of goods tendered through open tender procedure where bids will be received electronically, the “Type Administrative Specification for Procurement of Goods Tendered through Open Tender Procedure and for which Bids will be Received Electronically” in Annex-2 shall be taken as the basis.

(3) In case a framework agreement tender is made by the contracting authority, the draft framework agreement shall be prepared through EKAP based on the type framework agreement in the annex of the relevant implementation regulation.

(4) In case of a framework agreement tender, the type individual contract appropriate for the type of tender in the annex of the relevant implementation regulation shall be prepared via EKAP.

(5) After the framework agreement is concluded, the draft individual contract shall be prepared through EKAP by the administration that will make procurement within the scope of the relevant framework agreement, based on the type individual contract suitable for the type of tender in the annex of the relevant implementation regulation, and sent to the tenderers who are parties to the framework agreement invited to bid in the attachment of the invitation to bid letter or downloaded by these tenderers through EKAP using e-signature.

  • Establishment and working principles of the tender commission and technical specifications

According to Article 6 of the Law, the contracting authority shall constitute the tender commission within three days at the latest following the date of the tender announcement or pre-qualification announcement or invitation to tender. Technical specifications are prepared by contracting authorities in accordance with the principles set out in the Law and the relevant implementing regulations and uploaded to EKAP in the electronic format specified by the Authority.

  • Preparation and submission of e-bids

According to Article 19, e-bids shall be prepared by tenderers through EKAP. In the announcement and tender document, it shall be stipulated that the participation and qualification documents that cannot be queried through EKAP shall be scanned on a computer in accordance with the procedures and principles determined by the Authority and submitted within the scope of the e-bid.

E-bids are prepared by the tenderers via EKAP, signed with e-signature and sent via EKAP until the tender date and time. In case of joint ventures, the e-bid must be signed with e-signature by all partners of the joint venture. EKAP encrypts the e-bid signed with e-signature before sending it to the Institution. The e-key generated by EKAP as a result of encryption is saved by the tenderer. The e-bid is stored on EKAP with encryption and storage methods to be determined by the Authority until the opening time of the bids specified in the tender document and it is ensured that it cannot be opened. The e-key related to the offer is sent via EKAP after the date and time of the tender, until the opening time of the bids. Bids whose e-keys are not sent until the opening time of the bids are excluded from the evaluation.  

The time of receipt of the e-bid and the related e-key to EKAP is recorded with the time stamp regulated in the Electronic Signature Law No. 5070 and the relevant secondary legislation. The atomic clock is used to determine this time.

In the event that administrations and/or registered real and legal persons cannot perform transactions on EKAP due to technical problems during the tender process, the Authority is authorized to take measures to activate alternative systems and applications, to stop, postpone, renew or cancel these and related transactions when necessary in order to continue the transactions related to the tender process in accordance with the legislation and to prevent loss of rights. In this case, necessary notifications are made through EKAP.

  • Opening of e-bids

E-bids are opened on EKAP by the tender commission in front of the bidders and those present during the working hours of the same day. The e-bids that cannot be opened by EKAP due to reasons such as the e-key is corrupted or the e-bid contains a virus are identified and the “Tender Commission Minutes Regarding Unopened e-bids” in Annex-1 is issued on EKAP by stating the reasons for not being opened. The number of bids submitted by the tender commission at the time specified in the tender document is announced to those present. It is checked whether the documents of the bidders are missing or not and whether their bid letters and provisional guarantees are in compliance with the procedures. Pursuant to the second paragraph of Article 21, the evaluation of the letters of provisional guarantee is made by checking whether the amount of the provisional guarantee meets three percent of the bid price and the validity period of the provisional guarantee letter by EKAP.The ” E-bid Opening and Document Control Record” in Annex-1 is issued via EKAP. Bid prices and approximate cost are explained with the bidders and the “Minutes Regarding the Prices Offered by the Bidders” in Annex-1 is prepared via EKAP. These minutes can be seen by the tenderers participating in the tender on the status monitoring screen and are recorded on EKAP. The printout of these minutes is signed by the members of the tender commission. At this stage, no bid can be rejected or accepted, and the documents constituting the bid cannot be corrected or completed.

  • Decision, approval or cancellation of the tender

As a result of the evaluation, the tender is awarded to the tenderer who submits the most economically advantageous offer and the “Minutes of the decision of the tender commission” in Annex-1 is issued via EKAP. A printout of the decision of the tender commission is taken and signed by the members of the tender commission and submitted to the approval of the tender authority.

Before the tender decision is approved by the tender authority, it is confirmed via EKAP whether the tenderer who is awarded the tender and the tenderer who has the second most economically advantageous bid, if any, are banned from participating in tenders and the relevant document is attached to the tender commission decision. If it is understood that both bidders are banned, the tender decision is not approved by the tender authority and the tender is canceled.

  • Notification of the finalized tender decision and signing the contract

The result of the tender shall be notified to all tenderers, including the successful tenderer, within three days at the latest following the day on which the tender decision is approved by the tender authority. The notification of the result of the tender shall also include the reasons for not evaluating or rejecting the bids. In case the tender decision is canceled by the tender authority, the same notification shall be made.

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