The Presidential Circular No. 2020/5 on the Effect of the COVID-19 Outbreak on Public Procurement Agreements was published in the Official Gazette No. 31087 on Thursday, 2 April 2020. The Circular was drafted with the purpose of eliminating any hesitation or issues that may arise in practice with regard to force majeure notifications made by contractors concerning agreements signed within the scope of the Public Procurement Law No. 4734 (including exemptions) and the regulations exempted from the aforementioned law. The Circular mainly regulates the following:
- Contractors must apply to the administrative body party to the agreement regarding performance of the work that has become temporarily or permanently, fully or partially, impossible due to the COVID-19 outbreak (Force Majeure applications), provided that they document the situation in question.
- Force Majeure applications will be evaluated in accordance with Article 10 of the Public Procurement Agreements Law No. 4735, titled Force Majeure, or with the relevant provisions of other legislation. The opinion of the Ministry of Treasury and Finance must be obtained before rendering a decision on the matter.
- After its evaluation, the relevant administration may decide to (i) grant a time extension or (ii) terminate the agreement, as the case may be, if the following conditions are met:
- The existing situation must not be caused by the contractor’s fault;
- The event must constitute an obstacle for the contractor in fulfilling its contractual obligations; and
- The obstacle must be insurmountable for contractor.
Article 10 of the Public Procurement Agreements Law No. 4735 mentioned in the Circular stipulates that contractors must notify the administration in writing within 20 days following the date on which the force majeure event occurred.