Constitutionality Review

Contested Provision

It is stipulated in the contested provision that the procurement of goods and services in relation to the procurement of service, tools, equipment or materials that might be urgently needed for the preparation of emergency response plans and for response to pollution and the execution of the emergency response plans immediate aftermath of an event, as well as to the procurement by Turkish Environment Agency’s (the Agency)  of goods and services in relation to the activities concerning the establishment and operation of the deposit management system shall be exempt from the scope of the Law no. 4734, except for its provisions on fines and preclusion from participating in tenders.

Ground for the Request for Annulment

It was maintained in brief that the impugned provision was unconstitutional on the grounds that the said provision would lead to arbitrariness in the activities concerning the establishment and operation of the deposit management system; that no objective criteria had been prescribed for the procurement in this respect, which thus vested the administration with an unlimited discretionary power in the procurement of goods and services regarding the activities of establishment and operation of the deposit management system; that this would result in excessive public expenditures without any audit; that the provision did not pursue a public interest; that the lack of any definite fundamental principles and procedures prescribed by law restricted the freedom of enterprise by leading to discriminatory and unpredictable practices; that the impugned provision did not offer any opportunity for the exercise of the rights to legal remedy and an effective remedy for those whose rights had been allegedly violated due to the procurement of goods and services carried out within the scope of this provision; and that the failure to ensure competitive market conditions for such procurements of the Agency would result in monopolization and cause financial losses for the Agency.

The Court’s Assessment

The procurement of goods and services and construction works are, in principle, carried out pursuant to the provisions of Law no. 4734. In this Law, the principles of transparency, competition, equal treatment, credibility, confidentiality and public scrutiny are guaranteed in relation to the tenders of the procurement of goods and services. As no provision in the Constitution requires a blanket implementation of this Law for public tenders, the Constitution does not prevent the legislator from adopting different procedures as to the public tenders. Nevertheless, it is a constitutional obligation upon the legislator to designate the procedures in pursuance of the principles of transparency, accountability, and equal opportunity.

The exception introduced through the contested provision is the procurement of goods and services by the Agency for the establishment and operation of the deposit management system. The main issue to be addressed in the constitutionality review is to ascertain whether there are precise and explicit procedures and principles for the Agency in making a tender, whether there are precise and explicit legal provisions applied to the procurement procedure of goods and services, and whether the prescribed procedures are in pursuance of the principles of transparency, accountability and equal opportunity. The impugned provision exempts the goods and services in question from Law no. 4734. However, it does not point to another procedure to be applied for these goods and services. There is no certain framework as to the procedures and principles envisaged for tender to be organised by the Agency for the procurement of goods and services, nor as to the binding legal provisions in this respect. Accordingly, the procurements in the field subject to an exception through the contested provision failed to guarantee the principles of transparency, accountability, equal opportunity and foreseeability.

Consequently, the contested provision has been found unconstitutional and therefore annulled.