Usage of Work Completion Certificates of a Company by Another Company 26 September 2017

Work completion certificates are one the essential documents to be provided in order to submit in a tender according to Public Procurement Code numbered 4734 (“the Law no. 4734”). In principle, work completion certificates shall not be used in tenders by other applicants other than the company who is the owner of work completion certificates.  However, such usage can be possible within certain conditions. This article is about the conditions of usage of work completion certificates by another company in a tender.

Article 10 of the Law no. 4734 indicates the information and certificates required from the applicants who want to submit a bid in a tender in order for the official authority to determine their eligibility for the fulfilment of the work which is the subject of the tender in terms of economic and financial capacity together with professional and technical qualification. The said Article also lays down several limitations for the attendance to the tender as an applicant and for the submission of information and certificates to the related official authority. One of such limitations is related to the certificates of the applicants obtained in relation with the works completed, administrated or audited by the same.

Third paragraph of said Article clearly states that:

“…The certificates obtained in relation with the works completed, administrated or audited cannot be used by other applicants except for the individual or legal entity owners of the respective certificates and such certificates cannot be transferred, leased or sold. In order for the legal entities to be established or associated by the owners of the certificates to offer a bid in a tender, such owners must have more than the half of the shares of the established or associated legal entity at least for one year and this rate will be required in every tender and must be preserved during the guarantee period.”

This requirement of the Law no. 4734 is also stated in the relevant regulation of the same, namely the Construction Works Enforcement Regulation (“Regulation”). Paragraph 6 of Article 47 of the Regulation, with the title of “The Submission of Work Completion Certificate”, stipulates the same conditions with similar wording. It is stated in such Article that:

“Work completion, work status, works auditing and work administration certificates cannot be used by other candidates or applicants except for the individual or legal entity owners of the respective certificates and such certificates cannot be transferred, leased or sold. In order for the legal entities to be established or to be associated by the owners of such certificates to offer a bid in a tender, the owners must have more than the half of the shares of the established or associated legal entity at least for one year and this ratio must be preserved during guarantee period (until final acceptance).”

The end of the “guarantee period” mentioned under the above stated articles, which is the time limitation required for holding the same share ratio, is the date of “final acceptance” of the respective project for which the work completion certificates of the shareholder was used. In other words, if the applicant company is awarded with a contract by using the work completion certificates of the company which is the shareholder of the awarded company, the owner of the work completion certificate should maintain its share rate and its shares shall not decrease fewer than half of the all shares  until the final acceptance date of such project.

 As can be seen from the abovementioned provisions; in order for the Company - to use the work completion certificates and other qualification documents of the Company which is its shareholder in a possible tender;

• The owner Company of the work completion certificate should own more than half of the shares of the applicant Company for at least one year.
• Additionally, this ratio must be preserved during guarantee period. In other words, share ratio of the owner Company of the work completion certificate should not decrease fewer than half of the all shares until final acceptance of the respective project.

Türkçe Versiyonu İçin

http://www.kasaroglu.av.tr/tr/is-bitirme-belgelerinin-baska-bir-sirket-tarafindan-kullanimi