TR-TR 
EN-US 
There are problems in the raw material procurement and supply chains and unexpected increases in input prices in Turkey. In this regard, with Law No. 7351 adopted on January 19, 2022, a provisional article (“Provisional Article”) is added to the Law on Government Contracts dated January 5,2002 and numbered 4735, regarding the excess price difference and/or the assignment of government contracts.
Accordingly, an excess price difference can be given in addition to the price difference calculated according to the government contract, upon the application of the contractor using the contract prices. Provisional Article applies to the following: (i) Government contracts made in Turkish lira for goods and services and construction works that have been executed under Law No. 4734 before December 1, 2021 and continue as of the effective date of the Provisional Article or whose acceptance/provisional acceptance was made without termination or liquidation before the effective date of the Provisional Article; (ii) Regardless of whether there is a provision regarding price difference in the tender document for the parts realized between 1/7/2021 and 31/12/2021 (including these dates), the index of the month in which the tender date (last date of bidding) is included for the works whose tenders were made between 1/7/2021 and 30/11/2021 (including these dates), for the works tendered before 1/7/2021, the index for June 2021 is accepted as the basic index.
Within this scope, government contracts can be assigned with the contractor's application and the administration's approval. The terms in the first tender will be sought in assigned government contracts as of the date of assignment, and restrictions and sanctions resulting from the assignment will not be imposed. Furthermore, in joint venture contracts, the qualifying criteria in the initial bidding should not be sought for the assignment or share transfer between the partners. The contractor who assigned the government contract's guarantee is returned.
If the government contract is assigned within the scope of this Provisional Article, the contractor cannot claim any financial rights from the administration, except for the works or productions completed until the assignment date, without prejudice to the provisions of the government contracts to which the above-mentioned Provisional Article will apply. In addition, it has been stipulated that the measures taken by the contractor for the safety of life and property and the safety of the building will be deemed appropriate by the administration.
Moreover, the President of the Republic of Turkey is authorized to determine the principles and procedures regarding the types of purchases, products, and inputs for which excess price difference can be given within the scope of this Provisional Article, excess price difference calculations, and the assignment of government contracts, including the application period for the granting of the excess price difference or the assignment of the government contract, and the period during which the assignment procedures are to be completed.
It has been regulated that regarding the government contracts that were tendered for the reasons mentioned in this Provisional Article by the Housing Development Administration of Turkey before 1/12/2021 and continued the date of entry into force of this Provisional Article, the President of the Republic of Turkey may decide to grant time extension and price difference for work that cannot be performed according to the work schedule between 1/7/2021 and 31/12/2021.
In addition, it has been stipulated that the relevant legislation may be regulated by the administrations following the Provisional Article for the government contracts made in Turkish Lira for goods and services purchases and construction works exempted from Law No. 4734. Within this framework, some of the goods and services purchases that are exempted from the Law No. 4734 are as follows: (i) Goods, services, and works procurement, which is decided by the President of the Republic of Turkey or relevant ministry that these are related to the defense, security or intelligence or that these require to be treated confidentially or which require special security measures during the performance of the contract according to related legislation or which concern the cases in which the basic interests of the state’s security needs to be protected, (ii) Spot purchases of liquidated natural gas by Petroleum Pipeline Corporation (BOTAŞ) through importing, (iii) Procurement of goods, services, and works which includes industrial cooperation practices for innovation, localization, and technology transfer, (iv) Procurement of goods, services or works by the branches of contracting authorities in foreign countries; procurement of goods and services which must be procured locally for vehicles which are abroad, (v) Procurement of services from Turkish Airlines Incorporated Company for aerial transportation of privates and corporals and military materials.
Finally, according to the stipulation made within the scope of the Provisional Article, regulations may be made in the legislation of the relevant institution or higher association for the payment of price difference in government contracts concluded in Turkish lira regarding the purchase of goods and services and construction works to which the professional organizations and their superior unions like public institutions are parties or are covered by the resources of these organizations or unions.
Şafak Herdem, Esra Temur
