Uluslararası inşaat ihaleleri bağlamında bayındırlık işleri Genel Şartnamesi kökenli sözleşmelerin“fıdıc”model sözleşmeleri doğrultusunda düzenlenmesine yönelik bir yaklaşım
Başlık çevirisi mevcut değil.
- Tez No: 55941
- Danışmanlar: PROF.DR. SİNA BERKÖZ
- Tez Türü: Doktora
- Konular: Mimarlık, Architecture
- Anahtar Kelimeler: FIDIC, İhale, İnşaat sektörü, İnşaat sözleşmeleri, FIDIC, Tender, Construction sector, Construction contracts
- Yıl: 1996
- Dil: Türkçe
- Üniversite: İstanbul Teknik Üniversitesi
- Enstitü: Fen Bilimleri Enstitüsü
- Ana Bilim Dalı: Belirtilmemiş.
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: Belirtilmemiş.
Özet
ÖZET Şartnameler, inşaat sözleşmelerinin uygulanmasında yol gösterecek hukuki ve idari koşullar dizinidir. Bu koşullar düzenlenirken tarafları“eşit”ve“adil”olarak koruyan hükümleri içermesi herkesin kabul etmesi gereken esaslardandır. Ne var ki, BÎGŞ hazırlanırken“kamu yararını koruma”görev ve içgüdüsü ile hareket edilmiştir. Oysa“hukukun üstünlüğü”esastır. Uygulamada da gerek yurt içi, gerekse yurt dışı yüklenici kuruluşların BİGŞ'den geneldeki şikayetleri yukarda sözü edilen eşit lik ve adalet konularında yoğunlaşmaktadır. Ayrıca bu şartnamenin (BİGŞ) ; sözleşmelerin temel dayanağı olan Borçlar Kanunu' nun kavram ve kurumlar sistemine de çoğu kez uymayan, hatta kendi içinde çelişkili hükümler getiren, yer yer gereksiz tekrarlara düşen bir şekilde düzenlendiği de ifade edilmektedir. Bilindiği gibi, ülkemizde özellikle finansmanı dışardan sağlanan büyük projeler için bir ihale söz konusu olduğunda ve de Dünya Bankası kredi verdiğinde, ihaleye katılacak yabancı firmalar, uluslararası ihalelerde uygulanan FIDIC (Federation Internationale des Ingenieurs Conseil) Müşavir Mühendisler Uluslararası Federasyonu tarafından hazırlanan“înşaat İşleri İdari Şartnamesi”nin kullanılmasını istemektedirler. Dünya' daki sosyal ve ekonomik koşulların koşulların hızla değiştiği ve teknolojik sistemlerin de yine çok hızlı geliştiği göz önüne alındığında, şartnamelerin de gelişen ve değişen durumlara büyük ölçüde çözüm getirebilmesi gerekmektedir. Tüm bu nedenlerle Bayındırlık İşleri Genel Şartnamesi' nin FIDIC model sözleşmeleri karşısındaki durumunu ortaya koyup yeni bir şartname düzenlenmesi için sistematik bir yaklaşım olmak üzere bu çalışma yapılmıştır. xxii
Özet (Çeviri)
SUMMARY IN THE CONTEXT OF INTERNATIONAL TENDERS AN APPROACH FOR CONFORMING THE CONTRACTS BASED ON (TURKISH) GENERAL SPECIFICATION OF PUBLIC WORKS WITH FIDIC FORM OF CONTRACTS The Specifications are a series of legal and administra tive conditions that indicate to the procedures to be followed in implementing contracts. While drawing such conditions, rights of all the parties involved in a con tract must be defended equally and legally and this should be the main principle in the contents of all clauses.“General Specifications of Public Works”(GSPW) in Turk ish Contracting System is the main enclosure to the Con tracts in the Public tenders. But, it is difficult to claim that it fully conforms with the above stated prin ciples. Because, the Ministry of Public Works which has issued these specifications primarily aimed at protecting the rights of the 'state' which acts as the project owner in public tenders. Furthermore, it is generally believed that, these specifications from certain aspects, do not agree with some concepts and associations defined by the“Law of Obligations”which is the basis of all the con tracts in Turkey. It includes a large number of repeti tions and even some contradictory clauses. In the cases of international tenders which are financed by interna tional creditors, especially by the World Bank, use of“International Administrative Specification of Civil Works”issued by FIDIC is compulsory. Because, the clauses of above mentioned specification are drawn to protect the rights of all the parties involved in the contract in an equal and fair fashion. In addition, to comply with the social, economical and technological de velopments, it is continuously renewed,. xxiii.. To introduce International Administrative Specification of FIDIC to Turkish Civil Sector and to bring up the essentials; To examine the legal background of GSPW clause interpretations, in order to do proper interpretation of FIDIC clauses;. To bring up some clauses pertaining to Civil Contracts and Construction Contracts of the Law of Obligations based to GSPW and other relevant clauses; To obtain and compare the similar and different clauses and make analysis and interpretations between them in order to set up a relation between FIDIC and GSPW;. To bring up the different sides from GSPW by investigating some samples of the Contracts based on FIDIC, which are still in use in our Country;. To fix the subjects and clauses of Contracts based on GSPW which are difficult to apply and in disagreements. In this study; Construction Contracts of Turkish Law of Obligations as legal basis of Civil Contracts (Agreement For Work) and general terms of Law of Obligations have been examined in advance (3rd Section). Because, the conditions of Contract and the other conditions in General Administrative Specification should not be in contrary the terms of Law of Obligations. Out of that as per principle of free agreement, it has been always considered during our study as the main property of contracts is that the clauses, which shall be inserted to the specifications by the parties (Employer-Contractor), must comply with the principles of good intention - equality rightfulness. xxviSUMMARY IN THE CONTEXT OF INTERNATIONAL TENDERS AN APPROACH FOR CONFORMING THE CONTRACTS BASED ON (TURKISH) GENERAL SPECIFICATION OF PUBLIC WORKS WITH FIDIC FORM OF CONTRACTS The Specifications are a series of legal and administra tive conditions that indicate to the procedures to be followed in implementing contracts. While drawing such conditions, rights of all the parties involved in a con tract must be defended equally and legally and this should be the main principle in the contents of all clauses.“General Specifications of Public Works”(GSPW) in Turk ish Contracting System is the main enclosure to the Con tracts in the Public tenders. But, it is difficult to claim that it fully conforms with the above stated prin ciples. Because, the Ministry of Public Works which has issued these specifications primarily aimed at protecting the rights of the 'state' which acts as the project owner in public tenders. Furthermore, it is generally believed that, these specifications from certain aspects, do not agree with some concepts and associations defined by the“Law of Obligations”which is the basis of all the con tracts in Turkey. It includes a large number of repeti tions and even some contradictory clauses. In the cases of international tenders which are financed by interna tional creditors, especially by the World Bank, use of“International Administrative Specification of Civil Works”issued by FIDIC is compulsory. Because, the clauses of above mentioned specification are drawn to protect the rights of all the parties involved in the contract in an equal and fair fashion. In addition, to comply with the social, economical and technological de velopments, it is continuously renewed,. xxiii.. To introduce International Administrative Specification of FIDIC to Turkish Civil Sector and to bring up the essentials; To examine the legal background of GSPW clause interpretations, in order to do proper interpretation of FIDIC clauses;. To bring up some clauses pertaining to Civil Contracts and Construction Contracts of the Law of Obligations based to GSPW and other relevant clauses; To obtain and compare the similar and different clauses and make analysis and interpretations between them in order to set up a relation between FIDIC and GSPW;. To bring up the different sides from GSPW by investigating some samples of the Contracts based on FIDIC, which are still in use in our Country;. To fix the subjects and clauses of Contracts based on GSPW which are difficult to apply and in disagreements. In this study; Construction Contracts of Turkish Law of Obligations as legal basis of Civil Contracts (Agreement For Work) and general terms of Law of Obligations have been examined in advance (3rd Section). Because, the conditions of Contract and the other conditions in General Administrative Specification should not be in contrary the terms of Law of Obligations. Out of that as per principle of free agreement, it has been always considered during our study as the main property of contracts is that the clauses, which shall be inserted to the specifications by the parties (Employer-Contractor), must comply with the principles of good intention - equality rightfulness. xxviAgain in 3rd Sector, introducing both GSPW and Civil Works Administrative Specification of FIDIC, general structures of them have been examined. If it is required me to point out some proposals for amendments that I find very important; to separate controlling organizations freely from the Employers will be the main structural changes in the contracts based on GSPW. It is only possible for controlling to give a decision out of restraint when it is independent. In case controlling formed by the staff of Employer causes that all events are always evaluated by point of view of Employer under their decisions and behaviors. Such dependence is not accepted on the international platforms. Realization of such proposals will play a big role to increase the quality of public organizations. Besides, since equivalency will be provided between Employer and Contractor, solutions of many problems will much more easy in practice. In solution of disagreements in GSPW it should be accepted also to forward the case to the Arbitration Court as an alternative way together with application to the Courts. Very short-cut solutions can be obtained by this and saved many legal bureaucratic proceedings and it'll be possible to solve the disputes by specialist and reliable arbitrators. The other similar proposal pertaining to solution of disagreements is to forward such disputes originated from civil contracts to the specialist Courts and further an office, which examines and gives decisions only for such disputes, must be absolutely set up in the organization of Court of Cessation. Such an extended study on GSPW being related to FIDIC has not been seen through the literature that no analysis and interpretation have been realized in such detail on all clauses. Therefor, the proposals done must be evaluated by the Ministry of Public Works and other relevant Associations and developed as a new specification. Will such changes realizing on GSPW, GSPW shall be considered as two separate section in accordance to xxviiSUMMARY IN THE CONTEXT OF INTERNATIONAL TENDERS AN APPROACH FOR CONFORMING THE CONTRACTS BASED ON (TURKISH) GENERAL SPECIFICATION OF PUBLIC WORKS WITH FIDIC FORM OF CONTRACTS The Specifications are a series of legal and administra tive conditions that indicate to the procedures to be followed in implementing contracts. While drawing such conditions, rights of all the parties involved in a con tract must be defended equally and legally and this should be the main principle in the contents of all clauses.“General Specifications of Public Works”(GSPW) in Turk ish Contracting System is the main enclosure to the Con tracts in the Public tenders. But, it is difficult to claim that it fully conforms with the above stated prin ciples. Because, the Ministry of Public Works which has issued these specifications primarily aimed at protecting the rights of the 'state' which acts as the project owner in public tenders. Furthermore, it is generally believed that, these specifications from certain aspects, do not agree with some concepts and associations defined by the“Law of Obligations”which is the basis of all the con tracts in Turkey. It includes a large number of repeti tions and even some contradictory clauses. In the cases of international tenders which are financed by interna tional creditors, especially by the World Bank, use of“International Administrative Specification of Civil Works”issued by FIDIC is compulsory. Because, the clauses of above mentioned specification are drawn to protect the rights of all the parties involved in the contract in an equal and fair fashion. In addition, to comply with the social, economical and technological de velopments, it is continuously renewed,. xxiii
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