Communiqué Amending the Communiqué on the Procedures and Principles

1. INTRODUCTION

With the Communiqué Amending the Communiqué on the Procedures and Principles Regarding the Electronic Determination of Construction Inspection Organizations to Sign Construction Inspection Service Contracts with Construction Owners (“Communiqué dated 09.03.2023“) published in the Official Gazette dated 09.03.2023 and numbered 32127, regulations have been made on issues concerning construction inspection companies such as cluster construction, the periods determined for the removal of construction inspection organizations assigned electronically from the rankings, and the periods determined for the total construction construction areas following their assignment.

• AMENDMENTS AND IN THE COMMUNIQUÉ DATED 09.03.2023
  • CHANGE IN THE WORDING OF THE RELEVANT MINISTRY

With the Communiqué dated 09.03.2023; the expressions of the Ministry of Environment and Urbanization in the Communiqué on the Procedures and Principles Regarding the Electronic Determination of Construction Inspection Organizations to Sign Construction Inspection Service Contracts with Construction Owners published in the Official Gazette dated 29.12.2018 and numbered 30640 (“29.12.2018“) published in the Official Gazette dated October 29, 2021 and numbered 31643, has been changed to the Ministry of Environment, Urbanization and Climate Change (“Ministry“) as amended by the Presidential Decree No. 85 published in the Official Gazette dated October 29, 2021 and numbered 31643.

• ADDITION OF THE DEFINITION OF ERRONEOUS ASSIGNMENT

The Communiqué dated 09.03.2023 defines wrongful assignment in three ways:

1. a) After obtaining the construction license, it is determined that the construction is not an extension due to incorrect information or an extension is made to the wrong construction and the construction is assigned by the Ministry in this way,
2. b) After the construction license is obtained, it is determined that the construction is not included in the cluster construction due to incorrect information and that the assignment is made electronically by the Ministry for that construction as a cluster construction,
3. c) Except for the assignments made electronically in accordance with subparagraph (b) of paragraph 7 of Article 8 of the Communiqué dated 29.12.2018 or subparagraphs (a) and (b) of paragraph 8 of the same article, it is determined that the Ministry has assigned the wrong construction group for that construction due to incorrect information of the construction after the construction license is obtained.

•  AMENDMENTS REGARDING TERMINATION OF CONSTRUCTION INSPECTION SERVICE CONTRACT

In the event that one or more of the following situations occur, the construction inspection organizations for the constructions assigned electronically by the Ministry will be removed from the rankings created in accordance with the provision titled “Electronic Ranking of Construction Inspection Organizations” in Article 7 of the Communiqué dated 29.12.2018 for 60 days and they will not be allowed to undertake an inspection duty in a new work:

• It is understood that the construction supervision service contract has not been signed,
• The construction inspection organization is banned from taking on new work,
• It is understood that the construction supervision service contract is terminated due to the reason arising from the construction supervision organization, except for the cases of termination regulated in Article 21 of the Construction Supervision Implementation Regulation (“Regulation“) as the temporary withdrawal or cancellation of the construction supervision organization’s permit by the Ministry and the removal of the assignment of the construction supervision organization for that construction by the Ministry.

In the event that these situations occur more than once in a calendar year, the construction inspection organization will be removed from the rankings made pursuant to Article 7 of the Communiqué dated 29.12.2018 for an additional 30 days for each act and will not be allowed to undertake an inspection duty in a new work. This matter will be deemed to have been processed by the Ministry’s notification to the construction inspection organization via the electronic system.

In determining the number of verbs in a calendar year;

• In case the contract is not signed; the date of the assignment made electronically by the Ministry,
• For contract termination; the notary date will be taken into consideration.

Following the assignment or electronic assignment of the construction supervision organization by the Ministry, if the construction supervision service contract is not signed within 15 days for constructions with a total construction area up to 50,000 m2 (inclusive) and within 20 days for other constructions due to reasons arising from the construction owner and if this issue is confirmed by the relevant administration in line with the request of the construction supervision organization, the relevant administrations will be recorded by the relevant administrations in the electronic system of the Ministry.

For the works for which the construction supervision service contract is not signed, the relevant administration will take action against the construction supervision organization as mentioned above after the relevant administration records in the electronic system that this contract has not been signed due to reasons arising from the construction supervision organization within the periods determined as 15 and 20 days separately for the relevant situations mentioned above.

• AMENDMENTS REGARDING THE DETERMINATION OF THE CONSTRUCTION INSPECTION ORGANIZATION TO SIGN THE CONSTRUCTION INSPECTION SERVICE CONTRACT

The construction supervision organization determined in the electronic environment will lose this right if it does not undertake the responsibility of supervision of the construction by not assigning the necessary supervision staff specified in Article 15 of the Regulation for that construction within 10 days for the construction with a total construction area up to 50.000 m2 (inclusive) and 15 days for the construction with a total construction area over 50.000 m2 following its assignment. For the construction inspection companies that do not have missing audit staff, the removal from the ranking will not be applied in the following manner.

The construction inspection organization that does not assume the responsibility for the audit of the construction by being reassigned electronically by the Ministry within the above-mentioned principles will be removed from the rankings made in accordance with Article 7 of the Communiqué dated 29.12.2018 for 60 days and will not be allowed to assume the responsibility of a new audit work during this period. This period will be increased by 50% if the act is committed in the constructions within the approved boundaries of Industrial Zones, Technology Development Zones, Organized Industrial Zones, Free Zones and Industrial Sites.

The procedures for removal from the ranking and the subsequent limitations shall be applied for 60 days following the date of the action requiring removal from the ranking or for the period found by increasing the 60 days by 50% by notifying the relevant construction inspection organization through the electronic system of the Ministry.

In the event that an auditor has been assigned, but the assigned auditor is dismissed from that construction due to death or resignation from the organization before the expiration of the 10 and 15-day periods mentioned above, in the transactions to be carried out as mentioned above at the end of the period, the Ministry will be deemed to have assigned an auditor in that status in the construction by the construction inspection organization.

In the event that the Ministry determines that the construction supervision organization assigned electronically to determine the construction supervision organization that will sign the construction supervision service contract pursuant to Article 8 of the Communiqué dated 29.12.2018 has been assigned incorrectly in that construction, the Ministry will notify the construction supervision organization for 60 days following the determination of the responsible construction supervision organization, and will take action to remove the organization from the rankings made pursuant to Article 7 of the Communiqué dated 29.12.2028 and not to allow the organization to assume the supervision responsibility of a new work during this period.

The accuracy of the information regarding the construction shall be approved by the construction supervision organization through the same electronic system before the relevant administration issues a license approval for the construction through the electronic system of the Ministry. If it is detected that the Ministry has made an incorrect assignment despite this approval, this situation will be considered as causing an incorrect assignment for that construction due to making false statements or providing information/documents about the relevant construction supervision organization, and it will be removed from the ranking for a period of 60 days and will not be allowed to undertake the responsibility of supervision of a new work during this period.

The situation where it is understood that an erroneous assignment has been caused due to a change in the relevant information about the construction by selecting the option by mistake in the electronic system of the Ministry, will be evaluated as the case where the information is incorrect after the construction license is obtained by the Ministry for the erroneous assignment, regardless of the issuance of another license for the construction after the license approval for that construction in the construction inspection system.

•  DEFINITION OF CLUSTER STRUCTURES AND CHANGES RELATED TO THESE STRUCTURES DEFINITION OF CLUSTER STRUCTURES

Cluster structures are defined in three ways in the Communiqué dated 09.03.2023;

1. a) For before 01.01.2019; among the constructions licensed by signing a construction supervision service contract; the constructions whose construction supervision service contract has been terminated, whose construction will be continued by the same construction contractor on the same island or parcel, whose number is two or more, and whose approval of the Provincial Directorate of Environment, Urbanization and Climate Change (“Directorate“) has been obtained upon the request of the construction owner or construction owners without any electronic assignment by the Ministry before,
2. b) For after 01.01.2019; structures to be constructed by the same construction contractor on the same island or parcel and whose information is entered into the electronic environment by the project authors within a maximum of 30 days, the number of which is two or more, and the approval of the Directorates of the province where it is located upon request without any of these structures being assigned electronically by the Ministry before,
3. c) Structures to be constructed by the same construction contractor among the structures that are part of the power plant within the borders of the same relevant administration, the number of which is two or more and whose information is entered into the electronic environment by the project authors within a maximum of 30 days and the approval of the Directorate is obtained upon the request of the construction owner or construction owners without the assignment of any of them in the electronic environment by the Ministry before.

•  RELATED TO CLUSTER STRUCTURES
  • Amendments Regarding Termination of Construction Inspection Service Contract

For each construction in the cluster construction, the service contract signing periods mentioned in Article 2.3 above will be applied by taking into account the construction area of the construction in question, and the procedure in the same article will be carried out for each construction in the cluster.

• Amendments Regarding the Determination of the Construction Inspection Organization to Sign the Construction Inspection Service Contract

For each construction in the cluster structure, taking into account the construction area of the construction in question, the period of assignment of audit staff for that construction shall be applied as stated in Article 2.4 above and the procedure shall be established for each construction in the cluster as mentioned in the same article. In case there is a construction on more than one island within the cluster structure, the assignment to be made electronically by the Ministry shall be made from the one with the smallest island number to the larger one; in case there is a construction on more than one parcel within the island, the assignment to be made electronically by the Ministry shall be made from the one with the smallest parcel number to the larger one.

• CONCLUSION

The Communiqué dated 09.03.2023, which regulates which construction inspection organization will be assigned to the constructions within the scope of the Law No. 4708 on Construction Inspection, which are determined electronically by the Ministry, the supervision of the works and transactions after the assignment and the administrative penalties to be applied against possible negligence, is of great importance for the construction inspection organizations. Possible negligence in the aforementioned matters may have long-term consequences.