The contract provision was changed in favor of the company that won the tender on the Istanbul Izmir Highway, which was built with the Build-Operate-Transfer Model and includes the Osmangazi Bridge. Due to this change, the usage fees of 568 million TL, which the Nurol-Özaltın-Makyol-Astaldi-Yüksel-Göçay Joint Venture had to pay to the state, were not collected.
PHOENIXAccording to the information compiled by the TCA report, a contract was signed on 2009 September 27, following the tender held in 2010 for the construction of the highway, including the Osmangazi Bridge and connection roads, between Gebze and Izmir. According to the Implementation Agreement, it was decided that 400 million TL of the expropriation fee for the highway construction would be paid by the company and the remaining part by the administration. The company has also committed to pay the usage fee for the immovables whose expropriation costs are covered by the administration during the contract period. The usage fee was determined in advance for each parcel by increasing the rate of inflation in the following years, excluding VAT, 2010 TL for the year 5.000 when the contract was signed.
10 MILLION TL WILL BE PAID IN 568 DAYS
It is also added to the contract that the annual usage fee to be paid for the first time is paid within 10 working days following the delivery of the first real estate to the Company in Charge. However, the company did not pay the usage fees. This amount was calculated by the Court of Accounts as 568 million 151 thousand 099 TL 95 kuruş.
THE LAW HAS BEEN MADE AFTER THE CONTRACT
The tender and the contract signed afterwards were arranged in accordance with the Law No. 2009 on Making Some Investments and Services within the Framework of Build-Operate-Transfer Model. With the amendment made in the aforementioned law numbered 3996 in 3996, a regulation was made to not charge the usage fee for the works made within this scope.
THEY HAVE BACKED THE LAW
In the Court of Accounts Report, which reminded that the said contract was signed in 2010 before the amendment; “In the Additional Article 3996 added to the Law No. 1, there is no regulation that this provision is effective on ongoing contracts; the principle that the laws enacted are not effective in the past and the final legal situations, the decision of the Constitutional Court that interfering with the existing contracts by law is an intervention to the freedom of contract; The bidders compete over the "duration" in the tender work and the bidder who offered the lowest contract duration, which is the sum of the construction period and the operating period, won the tender; It was emphasized that the bidders examined the specification and contract drafts prepared by the administration before participating in the tender, and because they submitted their bids according to the conditions written in these documents, they calculated the usage costs arising from the expropriation they had to bear, and reflected the cost to the operating period ”.
CONTRACT CHANGED TO COMPANY'S BENEFIT
The Court of Accounts stated that the collecting of a cost item foreseen to bear during the execution of the contract and reflected in the tender phase meant that the terms of the tender were changed in favor of this company, and that the company had to pay a usage fee during the contract period.
HIGHWAYS DON'T ACCEPT THE FAILURE
The General Directorate of Highways, on the other hand, defended not to be charged the usage fee with the article "The Duty Company's obligation to comply with the changes in the legislation" in its statement regarding the issue during the investigation. The TCA auditors, on the other hand, are obliged to comply with the whole article, “The Company in Charge, the law, the regulations and the changes in other legislation and / or the relevant court decisions. In the event that the said amendment or court decisions cause any cost increase, the provisions of this article will be applied ”and the main purpose of this provision is to give the cost increases to the contractor as additional operating time. In the Court of Accounts Report, it was determined that “(…) does not mean that he will no longer pay the usage fee he has to pay as per the Application Agreement”.
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