The Presidential Circular published in the Official Gazette dated 02.04.2020, with issue number 31087 (''Official Directive.") The conditions for evaluating the current circumstances within the scope of force majeure according to Article 10 of the Public Procurement Law No. 4734 ("Public Procurement Law") in relation to public procurement contracts have been regulated. According to the relevant Circular, the procedures and principles that must be applied to determine the force majeure situation for the contractor who has entered into a contract with the Administration are specified.
According to Article 10 of the Public Procurement Law, events that can be considered as force majeure include natural disasters, legal strikes, general epidemics, partial or general mobilization declarations, and other similar situations to be determined by the Public Procurement Authority when necessary. In this context, the COVID-19 virus, which has had very serious consequences both nationally and internationally, has been accepted as a pandemic and, in accordance with the relevant legislation, it has been recognized as a general epidemic, leading to the implementation of necessary measures.
The Circular covers all contracts signed as a result of public procurement procedures carried out under the Public Procurement Law and other relevant legislation. In this context, it has been regulated that the contractor must apply to the administration if the performance of the contract is made temporarily or permanently impossible, partially or completely, due to the COVID-19 pandemic, to be evaluated as a force majeure situation. In these applications to the administration, the contractor must include documents showing that the business activities were affected by the COVID-19 pandemic. As a result of the evaluation of the application by the administration, if it is determined that the situation did not arise from a fault of the contractor, that it is of such a nature as to prevent the contractor from fulfilling its contractual obligations, and that the contractor is unable to eliminate this obstacle, the administrative authority will decide whether to grant an extension of time or to terminate the contract.
At this stage, the Circular does not include any provisions regarding whether the request made by the contractor for an extension of time or termination of the contract will be evaluated. However, it should be noted that according to Article 10 of the Public Procurement Law, the contractor is obligated to notify the administration in writing within 20 days following the occurrence of the force majeure event, so the application should not be delayed.
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