Canal İstanbul | Council of State cancels the tender for a railway line

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The 13th Chamber of the Council of State has handed down its ruling regarding the tender lodged for the "Halkalı-Ispartakule Railway Line" to be constructed as part of the Canal İstanbul Project; the high court has canceled the tender as it has found it to be contrary to law.

Referring to the negotiated tender, the Council of State has concluded that the necessary openness and competition were not ensured in the tendering process and emphasized that the tender did not meet the "condition of urgency" sought in the Article 21/b of the Public Tender Law.

The 13th Chamber of the Council of State has noted that the ruling is final and that it is closed to legal remedies.

Justification of the ruling

As reported by Alican Uludağ from DW Türkçe, in its justification, the ruling has said that apart from the conditions stipulated in the Article 21/b of the Public Tender Law for using the negotiated tendering method, the condition of "urgency" is sought in the sense that both the tendering process and the work in question are to be completed in the shortest possible time so that the related public service will not be interrupted.

The ruling has noted that the period of "1,170 days" within which the related work is to be completed does not comply with the condition of "urgency" and concluded that "it cannot be considered a valid reason for going out to a negotiated tender, which is an exceptional method".

'Ensuring competition has public good'

Against this backdrop, the Council of State has noted that ensuring openness and competition so that the needs can be met in the best way possible, under suitable conditions and on time is necessary for public good.

Accordingly, the Council of State has concluded that it was contrary to law to go out to a negotiated tender without citing a legally valid reason as per the Article 21/b of the Law no. 4734 and found it to be contrary to law that the Administrative Court rejected the court case against the negotiated tender held for the related railway line as part of Canal İstanbul.

When and how was the tender held?

The Ministry of Transportation and Infrastructure's Directorate General of Infrastructure Investments held the tender for the "Construction of the Halkalı-Ispartakule (Canal İstanbul Passage) Railway Line and Procurement and Construction of Electromechanical Systems as part of the Halkalı-Kapıkule New Railway Construction" on June 28, 2021.

Without an announcement, the tender was held with the negotiated tendering method as per the Article 21/b of the Public Tender Law no. 4734, which shall be implemented in cases of sudden and unexpected incidents such as natural disasters, epidemics and risks of losses of life and property or in cases with particular characteristics in terms of construction technique.

The related construction work to be undertaken within the scope of the tender was cited among the works to be undertaken "urgently".

While the Ministry invited nine companies to the tender, five companies tendered. The most suitable one for economic considerations was that of the Gülermak-Yapı and Yapı-Taşyapı partnership with 3 billion 111 million 362 thousand 15 TRY. They won the tender.

However, the Modifalt Construction Machinery Industry and Trade Inc. filed a lawsuit by arguing that the failure to lodge an open tender was against the law. The Ankara 18th Administrative Court dismissed the lawsuit on October 14, 2021. The company appealed against this dismissal.

Sending a defense to the Council of State, the Ministry argued that the tender had particular characteristics in terms of construction technique and that a long period of time was needed to procure the special technological / technical equipment for the work. It also said that the Halkalı-Kapıkule railway line was planned to be opened as a single integrated railway system with its all phases and, otherwise, there would emerge a risk that the completed parts of the project would wait idly.

(TP/SD)