An Evaluation About Competition Principle in Public Procurements in the Context of the 2019 Presidential Annual Program According to the Constitutional Court Decisions

The policy/measures in the 2019 Presidential Annual Program include targets to be realized for public procurements in Turkey, with a special focus on the targets that also cover the tenders carried out under the Public Procurement Law No. 4734. It can be suggested that the policies/ measures targeted in the Program will be effective in terms of the criteria of the competition principle in public tenders. This is a a reflection of the duties assigned to the State in terms of Article 48/2 and Article 167/1 of the Constitution, which regulate freedom of labor and freedom of contract and control of the markets, respectively. It can be suggested that the new regulations and practices will serve the purpose of ensuring maximum participation, which is the quantitative criterion of the competitive principle. Besides, these new regulations and practices are expected to give a new dimension to the quality criteria of the competition principle. In public procurements the financial intendment as well as non-financial intendments are considered to be taken into account in the decision to ensure the needs with the policies/measures targeted in the Program. It is against this backdrop that the paper aims to analyze rulings of the Turkish Constitutional Court (TCC) on the subject, which has examined the related cases on the basis of Article 48/2 and 167/1 of the Constitution. The paper concludes that public procurements, including the tenders carried out under the Law No. 4734, will be used as a tool for the purposes of ensuring compliance with the need and ensuring compliance with other purposes of the State that constitute the qualification criteria and this will be in line with the TCC’s case law.