It is difficult to make a single definition for procurement procedures to which the government is a party. When all of the laws are examined, it can be seen that the term tender is mentioned in different legal texts. Tender procedures can be generally defined as the rules of procedure that public authorities are obliged to follow before signing a private law contract. From this point of view, the government does not have the freedom to choose the other party to the contract.
When the regulatory headings of more than 250 laws regulating the tender process are examined, it is concluded that the concept is used to name four different public or private legal transactions. These are called tenders regarding public expenditure procedures, income-generating tenders, tenders regarding government borrowing and tenders of the private law entities/persons.
There are generally two parties involved in the tender processes. The first of these is government administrations that use public authority, and the second is private legal entities/persons and ordinary partners that do not have a legal personality. Following an announcement by a government institution, these parties come together to conduct a tender procedure governed by public law. This process is associated with administrative law.
As a result of the tender process, the parties sign a contract. This contract usually falls within the field of private law. When it comes to private law relations and contracts, the law of obligations should be referred to. It is possible to argue that a new contract independent of the different types of private contracts regulated in the Turkish Law of Obligations exists. However, it is observed that the Court of Cassation evaluates the disputes arising from public procurement contracts according to the subject of the contracts and special provisions of the Turkish Law of Obligations.
Within the framework of the assessments made above, it can be argued that public procurement law is positioned at the intersection of administrative law and the law of obligations. The processes carried out by the government in order to choose the party to the public tender contract based on public authority and privileges are concepts regulated in the administrative law. The implementation of the contract is refers to the law of obligations.