Important Questions and Awaiting Answers
Recent developments have raised serious questions regarding the public share ratios in pilotage tenders. The Ambarlı pilotage tender concluded with a 95% public share ratio, while the Kocaeli-1 tender was completed with an 89.5% public share. Both tenders are currently canceled amid rumors of "not finalized but being discussed."
On the other hand, the Gemlik tender resulted in an 88% public share and has been deemed valid. Even more strikingly, the Aliağa-1 tender, which concluded with an 89.75% public share ratio, has not been canceled. This situation brings forth an inevitable question: why is the 89.5% ratio canceled while the 89.75% is considered valid?
According to our research, the canceled tenders had a public share ratio of 95% for Ambarlı and 89.5% for Kocaeli-1. In contrast, the ongoing tenders resulted in public share ratios of 89.75% for Aliağa-1, 88% for Gemlik, 84.5% for Yalova, and 58% for Samsun, all of which have been deemed valid.
When we place these figures side by side, the resulting picture is quite thought-provoking. How can the 89.5% ratio in the Kocaeli-1 tender be deemed "unsustainable," while the 89.75% ratio in Aliağa-1 is considered sustainable? There is only a 0.25% difference between them. What objective justification could there be for this microscopic difference?
The critical point of the situation is the lack of transparency regarding the reasoning behind these cancellations. If the reason for cancellation is indeed "unsustainable high public share," then it becomes necessary to explain why other tenders with similar ratios have been treated differently.
The principle of "equal treatment for similar cases," one of the fundamental principles of administrative law, is seriously called into question in this case. How can the 88% ratio in the Gemlik tender be deemed sustainable while the 89.5% ratio in Kocaeli-1 is used as a reason for cancellation? Is a 1.5% difference the critical threshold that renders a tender unsustainable?
Even more interesting is the situation with Aliağa-1. The 89.75% ratio that emerged in this tender is even higher than that of the canceled Kocaeli-1 tender. If the mathematics of 89.5% does not hold, how does the mathematics of 89.75% work? A logical answer to this question needs to be found.
One of the most severe legal issues arising from the administration's practices is the discriminatory treatment between newly entering companies and existing service providers. This discrimination violates both the principle of equality in the Constitution and the fundamental principles of competition law.
In the current practice, tenders won by newly entering companies in the pilotage service are canceled on the grounds of "unsustainable public share," while tenders from companies that have been providing this service for a long time, which offer the same or higher ratios, are deemed valid. If this is not corrected, it will create a "status discrimination" that contradicts the fundamental principles of administrative law.
Even more troubling is the fact that new entrants are raising public share ratios in tenders that existing service providers also participate in, thereby forcing the current operators to bid at potentially loss-inducing levels. If the administration acts with an approach summarized as "you will provide this service anyway, I trust you," it will not be compatible with the principles of a rule of law.
According to Article 10 of the Constitution of the Republic of Turkey, everyone is equal before the law, and no person, family, group, or class can be granted privileges. If the administration discriminates among bidders who submit the same offer under the same tender conditions using the criterion of "having provided service before," this is a clear violation of the constitutional principle.
According to the Council of State's case law, the principle of equality requires "equal treatment for those in equal situations and different treatment for those in different situations according to their differences." However, if discrimination is made based on the non-objective criterion of "past experience" among bidders who participate in the same tender under the same conditions and submit similar offers, there is no justifiable and reasonable basis for this discrimination.
Considering the principles of European Union competition law, it is essential to protect competition in public tenders and facilitate access for new entrants to the market.
If the administration operates under the assumption that existing service providers will "finance their unsustainable public share with their own resources," this creates an unacceptable situation both legally and economically.
First, this approach violates the principle of "equal treatment." If the financial strength or equity structure of a bidder is to be used as an objective criterion in the tender evaluation, this must be explicitly stated in the tender specifications and applied equally to all bidders.
Second, the expectation that an unsustainable business model will be supported by own resources will lead to a decline in service quality and harm the public interest in the long run. It is economically irrational for a loss-making business to continuously sacrifice its own resources.
Third, this situation creates "unfair competition." Companies with strong equity can dominate the market with potentially loss-inducing bids and drive competitors out of the market, which can be considered "predatory pricing."
Pilotage services are a vital public service that requires high experience and expertise to ensure maritime safety. The uninterrupted and secure provision of this service is indispensable for the protection of maritime trade and human safety. The way the administration evaluates the "past experience" criterion in this critical service harbors serious legal issues.
Priority of Maritime Safety and Importance of Experience: The legislation related to the Law on the Protection of Life and Property at Sea No. 4922 prioritizes maritime safety. Pilotage services are inherently a profession that requires experience and expertise. Knowledge of the specific conditions of the port area, currents, shallows, and maneuvering capabilities requires years of accumulation. Therefore, past experience is not just a preference but a necessity for maritime safety.
First Contradiction - The Paradox of Trust and Sustainability: The administration implies that it trusts experienced companies that have successfully provided pilotage services for many years, yet it does not use this trust to establish a fair mechanism that operates with sustainable public share ratios. If the administration is satisfied with the service quality and capacity of experienced operators to ensure maritime safety, it could have procured this service under sustainable conditions through the exceptional provisions of Law No. 4734 or direct procurement methods.
Second Contradiction - Acceptance to Tender and Maritime Safety: More troubling is the administration's acceptance of new entrants whom it believes do not have sufficient experience in terms of maritime safety. If there are doubts about these companies' capacity to ensure maritime safety, why were they accepted into the tender? This contradicts the principle that maritime safety is the first priority.
If the administration anticipates that the offers from new entrants will be unsustainable and will jeopardize maritime safety, it should not have accepted these bidders into the tender from the outset. Otherwise, it implies that these companies are merely functioning to "inflate the public share to crazy percentages," which cannot be justified legally or aligned with the principle of maritime safety.
Third Contradiction - Devaluation of Experience: The participation of new entrants with unsustainable bids in tenders has forced experienced operators to bid at similar ratios. This situation leads to the financial distress of companies that have successfully ensured maritime safety for years, are familiar with port areas, and specialize in risk management. While it is critical to protect this experience essential for ensuring maritime safety, the current system puts this accumulation at risk.
Fourth Contradiction - Legal Regulation and Maritime Safety: The administration may claim that it does not prefer to procure services directly from experienced operators on the grounds that "the law does not permit." However, this excuse is not valid. The legislation prioritizes maritime safety. The exceptions in Article 3 of Law No. 4734, the cases of direct procurement in Article 22, or methods such as negotiation can be used in situations that require maritime safety. When it comes to maritime safety, the administration has broad discretion.
Due to these contradictory practices, affected parties have the right to file a full judicial case against the administration to seek compensation. Due to the administration's faulty and contradictory practices:
The following steps must be taken to resolve this legal issue:
1. Establishing Objective Criteria: The administration must explain the criteria it will use in tender cancellation decisions as objective, measurable, and predetermined. The mathematical formula for the concept of "unsustainability," the calculation method, and threshold values must be announced to the public.
2. Retroactive Correction: A retrospective review should be conducted to resolve inconsistencies between canceled tenders and those deemed valid, and decisions that violate the principle of equality should be corrected.
3. Judicial Review Path: Affected new entrants should seek judicial recourse against the administration's actions and transactions under Article 125 of the Constitution. A lawsuit should be filed to determine the illegality of practices that violate the principle of equality.
The administration's use of new entrants as a "tool to inflate public share to excessive levels" and subsequently canceling their tenders is unacceptable both legally and ethically. This approach contradicts the principles of neutrality and integrity of the administration and jeopardizes maritime safety.
Considering the experience-requiring nature of pilotage services and the priority of maritime safety, the administration must correctly apply the principle of positive discrimination. This means establishing objective criteria that will ensure maritime safety, not merely protecting experienced operators.
Maritime sector experts continually emphasize that high public share ratios are "mathematically impossible" and that companies can only survive with other sources of income. If these views are correct, the resulting inconsistencies become even more significant.
A noteworthy detail in the Gemlik tender is that the public share scale for this region was set at around 30% within the administrative framework. However, the tender result reached 88%. A result nearly three times the administrative framework was produced, yet this was deemed "sustainable." Why are high ratios in other regions evaluated differently under the same logic?
A similar situation occurred in the Yalova tender. Experts raised the question, "How will this calculation hold up?" regarding the winning firm with an 84.5% ratio. It was noted that shipyard discounts also needed to be considered, and the remaining income of the company would be very low. Yet, this tender was also deemed valid.
According to the main principles of administrative law, the principle of equality necessitates equal treatment for individuals in similar situations. In this case, while an 84.5% public share is deemed sustainable, the legal explanation for why 89.5% is unsustainable becomes a matter that needs clarification.
The principle of proportionality also requires that administrative decisions be based on objective criteria. Subjective evaluations such as "this ratio is too high, that ratio is appropriate" do not align with the requirements of a rule of law. It becomes imperative to establish and share objective criteria with the public.
From the perspective of the principle of predictability, the situation is problematic. Sector players should know in advance which public share ratio is acceptable. This uncertainty negatively impacts investment plans and service quality. Companies cannot foresee which ratio will be a reason for cancellation when entering a tender.
In this case, the administration is expected to provide a detailed explanation of the reasons for the canceled tenders. The concept of "unsustainability" is a general expression; specific financial, technical, or legal criteria that serve as grounds for cancellation need to be concretely specified.
Secondly, consistent application is expected. The same rationale should be applied to all tenders in similar situations. Selective application is incompatible with the principles of a rule of law. If 89.75% can be sustainable, the reasons why 89.5% is unsustainable must be clarified.
Thirdly, objective criteria need to be established and shared with the public. Which public share ratio is considered sustainable, what factors are taken into account, and how are objective criteria determined should be transparently announced.
Several paths emerge for solving this issue. The first option is to provide a detailed explanation of all cancellation reasons and to maintain a consistent approach to tenders in similar situations. This will ensure legal security and eliminate uncertainties in the sector.
The second option is to objectively determine sustainability criteria. What factors are considered, what calculations are made, and what thresholds are applied should be presented with concrete data. This transparency will increase trust in the administration and meet the sector's need for predictability.
The third option is to establish transparent communication with the public. This should not be limited to making statements; the decision-making processes also need to be made transparent.
This issue is not just a technical tender problem but a matter of applying the fundamental principles of administrative law. The fact that 89.5% is canceled while 89.75% is deemed valid necessitates an explanation of the legal justification for this 0.25% difference.
If the range between 88% and 89.75% can be sustainable, the answer to why 89.5% is unsustainable is critical for the sector's predictability, the principles of a rule of law, and the protection of the public interest.
Making transparent statements will both increase trust in the administration and eliminate uncertainties in the sector. What needs to be done is to provide detailed explanations for cancellation reasons, maintain a consistent approach to tenders in similar situations, objectively determine sustainability criteria, and establish transparent communication with the public.
In a rule of law, the presumption is legality, not arbitrariness. The basis of this presumption is justification. Authority that cannot explain its justification undermines its own legitimacy. What is needed in this situation is to establish legal security through clear and consistent explanations.
If the administration discriminates between newly entering enterprises and existing service providers, this will not align with the fundamental principles of a rule of law. Correcting these violations is vital not only for the companies that are harmed but also for the integrity of our legal system and the legitimacy of public administration.
Source: www.denizhaber.com