Kamu İhale Sözleşmelerinde Banka Teminat Mektupları ve Uygulaması

Abstract

The State makes contracts with private entities to afford public services. The contracts between the State and private entities are named public procurement contracts. Public procurement contracts are liable to private law provisions. The process of public procurement are legal sequences that start with call a tender and end with a public procurement contract. Within this period, the State must protect itself against some risks. That protection is generally been provided by guarantees. There are three types of guarantees to submit. These are; current Turkish lira in circulation, government domestic debt securities and bank letter of guarantees. In practice, candidates of public procurement and contractors submit letter of guarantees to the State to guarantee some risks. Thus, some risks which are showed by the legislation itself have been guaranteed. With taking place the risk that had been guaranteed the State can demand the amount of the letter of guarantee from banks. When banks encounter with a legal demand of payment, it must pay the sum that it guaranteed. But banks have some pleas against illegitimate demand of payments. These pleas are limited in the letter of guarantees which had been submitted to the State. Because these letter of guarantees involve the “payable upon first request” term. Upon this request, banks have to pay the sum immediately. Avoiding the payment is only possible when the State‟s request could be proven with proofs beyond reasonable doubt. Besides, having a provisional injunction may ensure avoiding the payment for a limited time. But according to the legislation, the payment of letter of guarantees that are submitted to the State can not be the subject of a provisional injunction. That causes some forfeitures in practice. Our study is based of analyzing the practice of bank letter of guarantee contracts between the State and banks in the need of public procurement process.