Introduction
Force majeure in Turkish public procurement contracts is one of the most important legal issues for contractors, suppliers, service providers and foreign companies performing contracts with Turkish public authorities. Public procurement contracts are usually strict, document-based and deadline-sensitive. A contractor that fails to deliver goods, perform services or complete construction works on time may face delay penalties, payment deductions, performance bond risks, termination, liquidation and even debarment consequences. However, where performance is prevented by a legally recognized force majeure event, the contractor may be entitled to time extension, contract termination without ordinary default consequences, or other lawful relief depending on the facts.
The main legal framework is Public Procurement Contracts Law No. 4735. This law governs contracts concluded after tenders conducted under Public Procurement Law No. 4734. Article 10 of Law No. 4735 regulates force majeure and lists events that may be accepted as force majeure, including natural disasters, lawful strikes, general epidemics, partial or general mobilization, and similar cases determined by the Public Procurement Authority where necessary. The same article also sets strict conditions: the event must not arise from the contractor’s fault, must prevent performance, must be beyond the contractor’s power to remove, must be notified in writing within twenty days following the date of occurrence, and must be documented by competent authorities.
For companies, the most important lesson is that force majeure is not an automatic excuse. It is a legal mechanism requiring timely written notice, objective evidence, causation and administrative assessment. A contractor cannot simply state that performance became difficult, expensive or commercially unattractive. The contractor must show that the specific event legally qualifies as force majeure and directly prevents performance of the contractual obligation.
Legal Framework Under Law No. 4735
Law No. 4735 determines the principles and procedures for preparing and implementing public procurement contracts concluded under Public Procurement Law No. 4734. The law provides that public procurement contracts cannot contain provisions contrary to the tender documents and that, except in legally specified cases, contract provisions cannot be changed and additional contracts cannot be executed. This is important because force majeure rights must be assessed within the contract, tender documents and statutory framework, not according to informal negotiations after the event.
Article 7 of Law No. 4735 requires public procurement contracts to include several mandatory issues, including the contract price, payment terms, performance bond, delivery and acceptance rules, delay penalties, force majeure, conditions for granting time extension, contract amendments and termination conditions. This means force majeure should not be treated as a general background concept; it must be connected to the express contract provisions and tender documents.
The main force majeure rule is Article 10. It lists the categories of events that may be considered force majeure and then imposes cumulative requirements for the administration to accept those events as force majeure for purposes such as time extension or contract termination.
Events That May Qualify as Force Majeure
Article 10 of Law No. 4735 identifies five categories of events that may be accepted as force majeure. These are natural disasters, lawful strikes, general epidemics, partial or general mobilization, and similar other cases to be determined by the Public Procurement Authority where necessary.
Natural disasters may include events such as earthquakes, floods, landslides, severe storms, fires caused by natural conditions or other disasters that objectively affect performance. Whether a natural event qualifies depends on its impact on the specific contract. A heavy rain may not be force majeure for every contract, but a flood destroying the worksite or preventing access may qualify if the statutory conditions are met.
Lawful strikes may qualify where they are legally recognized and directly affect performance. However, ordinary labour shortage, subcontractor dispute or internal employment problem is not automatically a lawful strike for force majeure purposes.
General epidemics are expressly listed. The COVID-19 period showed that epidemics can create public procurement performance problems, including supply-chain disruption, workforce restrictions, quarantine measures and access limitations. However, the contractor must still prove causation and inability to overcome the obstacle.
Partial or general mobilization refers to extraordinary national conditions affecting performance.
Similar other cases determined by the Public Procurement Authority are important because they allow recognition of extraordinary events not expressly listed. However, a contractor’s application under this category does not automatically suspend performance obligations unless and until the relevant legal determination is made.
Force Majeure Is Not Automatic
A common mistake is assuming that the occurrence of a listed event automatically gives the contractor relief. Article 10 does not work that way. Even if an earthquake, epidemic or lawful strike occurs, the administration must examine whether the event satisfies all statutory conditions for the specific contract.
The event must not be caused by the contractor. It must prevent fulfilment of the contractual commitment. The contractor must be unable to remove the obstacle. The contractor must notify the administration in writing within twenty days following the event. The event must also be documented by competent authorities.
This means that force majeure analysis is contract-specific. An earthquake in one province may prevent performance of a construction contract in that province, but may not affect a software support contract performed remotely from another city. A general epidemic may affect personnel-based services, but may not prevent delivery if the supplier has stock and logistics remain available. A public restriction may prevent access to a worksite, but ordinary cost increases may not be enough.
The Twenty-Day Written Notice Requirement
The twenty-day written notice requirement is one of the most important procedural conditions. Article 10 requires the contractor to notify the administration in writing within twenty days following the date when the force majeure event occurs.
This requirement is strict. A contractor that waits too long may lose the ability to rely on force majeure even if the event is serious. The notice should not be vague. It should identify the event, date of occurrence, affected contract, affected obligations, reasons why performance is prevented, evidence available, expected duration and requested legal consequence, such as time extension, suspension, termination or other contract-specific relief.
For companies, the safest practice is to send written notice immediately after the event becomes known. If the full impact cannot yet be calculated, the contractor should submit an initial notice and then supplement it with additional evidence. Silence is dangerous. Oral conversations with public officials are not enough.
Documentation by Competent Authorities
Article 10 also requires force majeure to be documented by competent authorities. This requirement is practical and evidentiary. The contractor must prove that the event occurred and that it affected performance.
Depending on the event, evidence may include disaster authority records, governorship or municipality documents, official closure orders, health authority documents, court or labour authority documents, police reports, customs records, transport restriction notices, chamber of commerce records, expert reports, photographs, site minutes, correspondence with suppliers, logistics documents and public announcements.
However, merely proving that the event occurred may not be enough. The contractor must also prove a causal link between the event and the inability to perform. For example, in a goods supply contract, a flood at the supplier’s factory may be relevant only if that factory was the source of the contracted goods and alternatives were not reasonably available. In a construction contract, an earthquake may justify time extension if it damaged the worksite, prevented access, caused administrative suspension, or required redesign or safety inspections.
Time Extension Due to Force Majeure
One of the main consequences of force majeure is time extension. If the force majeure event temporarily prevents performance but does not make the contract impossible or unnecessary, the administration may grant additional time.
Time extension is especially important in construction works, long-term service contracts, supply contracts with delivery schedules, maintenance contracts and installation projects. A contractor facing force majeure should not simply stop performance. It should submit a timely written application, document the event, explain the delay effect and request a specific extension.
The administration should evaluate whether the event actually delayed the contractual path, whether the contractor was already in delay before the event, whether the contractor could mitigate the delay, and how much additional time is justified. Force majeure does not usually excuse delays unrelated to the event.
Contract Termination Due to Force Majeure
Article 10 expressly refers to consequences including time extension and contract termination. Termination may be appropriate where the force majeure event makes performance impossible, permanently prevents the contract purpose, or eliminates the public need.
Termination due to force majeure should be distinguished from termination due to contractor default. If the contract is terminated because of contractor default, the contractor may face performance bond forfeiture, compensation claims, debarment risk and other sanctions. If termination is based on legally accepted force majeure, the legal consequences may be different.
However, termination is not automatic. The contractor must request relief, the administration must assess the factual and legal conditions, and the contract must be liquidated according to applicable rules. Contractors should continue to preserve evidence and comply with administrative instructions until a formal decision is issued.
Force Majeure and Continuing Performance Obligations
A major legal risk arises when the contractor applies for force majeure but stops performance before the application is accepted. The Public Procurement Board issued Decision No. 2018/DK.D-348 on this issue. According to the Authority’s announcement, applying to the Authority under Article 10(e) for a similar force majeure case does not remove the contractor’s obligation to continue performing the contract. The Board also stated that if the Authority later determines the event to be force majeure, previously imposed delay penalties based on that issue should be returned and the administration should take new action according to the legal situation concerning time extension or termination.
This is extremely important for contractors. A force majeure application is not a licence to abandon the work. Unless performance is physically or legally impossible, the contractor should continue performing as much as possible, document prevented parts separately and avoid conduct that may be treated as default.
Earthquakes as Force Majeure: Public Procurement Practice
Earthquakes are expressly relevant because natural disasters are listed under Article 10. After the 6 February 2023 earthquakes in Turkey, the Public Procurement Authority announced that for public procurement contracts carried out in the affected provinces, or contracts affected because the contractor operated in those provinces, contractors did not need to apply separately to the Authority for force majeure recognition. Instead, if contractors applied to the contracting administrations, the administrations could decide according to the concrete case whether to grant time extension, terminate the contract or reject the application.
This announcement shows how force majeure may be handled in large-scale disasters. In extraordinary events affecting multiple provinces and many contracts, the Authority may issue practical guidance. However, even in such cases, the administration still evaluates the concrete impact on the specific contract. A contractor should not assume that every contract is automatically extended or terminated merely because a disaster occurred.
The same announcement also emphasized that where labour, machinery, equipment or other resources used in ongoing public contracts were requested for earthquake response under coordination of relevant institutions, administrations should provide necessary facilitation without imposing penalties on contractors.
Special Disaster Measures and Contract Transfer
Following the 2023 earthquakes, special rules were also introduced through emergency-related measures. The Public Procurement Authority announced that contracts continuing as of 3 March 2023 in provinces under the state of emergency could be terminated without sanctions by the contracting administration until the end of the emergency period if performance became impossible due to earthquake-related force majeure or if the contract subject was no longer needed. The announcement also referred to transfer possibilities for certain contracts affected by the earthquake, subject to contractor application and administrative approval.
This example is useful for companies because it shows that force majeure may interact with special temporary legislation or presidential decisions. In extraordinary national crises, the ordinary Article 10 framework may be supplemented by special rules. Contractors should therefore check not only Law No. 4735 but also current Public Procurement Authority announcements, presidential decisions and temporary statutory provisions.
General Epidemics and Public Procurement Contracts
General epidemics are expressly listed as force majeure under Article 10. However, the contractor must still prove that the epidemic prevented performance of the specific contract and that the obstacle could not be removed by reasonable measures.
For example, a service contractor may rely on epidemic restrictions if personnel could not legally access the workplace or if official quarantine measures prevented performance. A supplier may rely on epidemic-related force majeure if production, transport or customs processes were legally or physically blocked. A construction contractor may rely on epidemic restrictions if site access, workforce availability or material delivery was directly prevented.
But commercial hardship alone is not enough. Increased costs, reduced profitability, supplier inconvenience or market uncertainty do not automatically create force majeure. The contractor must connect the epidemic to actual impossibility or prevention of contractual performance.
Force Majeure and Price Difference
Force majeure should not be confused with price difference. Price difference is a calculation mechanism based on contract provisions, legislation and indices. Force majeure is a legal excuse or relief mechanism where performance is prevented by extraordinary events.
A contractor cannot usually demand price increase simply by invoking force majeure. If cost increases occur, the correct legal analysis may involve price difference clauses, temporary additional price difference legislation or hardship-related special provisions, not ordinary Article 10 force majeure.
However, force majeure may affect the work program and time extension. If a time extension is granted, price difference calculations may be affected under applicable price difference rules and revised work programs. Therefore, contractors should manage force majeure, time extension and price difference claims separately but consistently.
Force Majeure and Delay Penalties
Delay penalties are a major risk in public procurement contracts. If the contractor fails to perform on time without lawful justification, the administration may impose penalties. If the delay is caused by force majeure and the statutory conditions are met, delay penalties should not be imposed for the force majeure period.
The 2018 Public Procurement Board decision is instructive. The Board stated that if the Authority later determines the event to be force majeure, the legal basis of delay penalties previously imposed for that issue would disappear, and penalties should be returned while the administration takes new action according to the legal situation concerning time extension or termination.
This means that contractors should object to delay penalties in writing where they believe the delay is force-majeure-related. They should preserve the penalty decisions, progress payment deductions, correspondence and force majeure evidence.
Force Majeure and Performance Bonds
Performance bonds may be at risk where the administration treats non-performance as contractor default. If the contractor fails to deliver, complete or perform without accepted justification, the administration may consider termination and bond-related remedies.
Where force majeure is properly accepted, the contractor may avoid default consequences for the affected performance. However, this depends on timely notice, proof, administrative acceptance and correct legal procedure.
Contractors should be careful not to allow a force majeure situation to turn into a default case due to poor documentation. A contractor that fails to notify within twenty days, fails to submit competent authority documents or stops performance without formal relief may expose its bond to risk.
Force Majeure in Goods Procurement
In goods procurement, force majeure may arise from natural disasters affecting production facilities, customs restrictions, lawful strikes in logistics chains, general epidemics affecting manufacturing or transportation, or government measures preventing delivery.
The key issue is whether the specific goods could still be supplied through alternative sources. If the goods are standard market products and alternatives exist, the administration may reject the force majeure claim. If the goods are custom-made, imported from a specific affected facility or subject to legal restrictions, the claim may be stronger.
Suppliers should document production status, stock availability, supplier communications, transport disruptions, customs restrictions, official closure orders and alternative-sourcing efforts.
Force Majeure in Service Procurement
In service procurement, force majeure often affects personnel, workplace access, equipment, transport, health restrictions or public closures. Cleaning, security, catering, transportation, maintenance, facility management, call centre and IT support contracts may each be affected differently.
A contractor should distinguish between complete prevention and partial performance difficulty. For example, a service may continue at reduced capacity or remotely. The contractor should document which obligations were prevented and which could still be performed.
For personnel-based services, labour shortage alone is not necessarily force majeure unless connected to a listed event or official restriction. Internal staffing problems, resignations or subcontractor failures are usually contractor risks.
Force Majeure in Construction Works
Construction works are especially vulnerable to force majeure events. Earthquakes, floods, landslides, storms, fires, epidemics, mobilisation, site access restrictions, official evacuation orders and disaster-response resource reallocations may affect construction performance.
A construction contractor should immediately prepare site records, photographs, engineer reports, official disaster records, revised work program analysis, equipment damage reports, material supply evidence and correspondence with the administration.
The contractor should also identify whether the event affected the critical path. A force majeure event may damage part of the worksite, but if the delayed activity was not on the critical path, the administration may grant a shorter extension or reject part of the claim.
Practical Checklist for Contractors
Contractors facing a possible force majeure event should act quickly and systematically.
First, identify the event and its date. Second, check whether it falls under Article 10 or may require Public Procurement Authority determination under Article 10(e). Third, determine which contractual obligations are affected. Fourth, collect official documents from competent authorities. Fifth, notify the administration in writing within twenty days. Sixth, explain why the event was not caused by the contractor. Seventh, show how the event prevents performance. Eighth, prove that the obstacle cannot be removed by the contractor. Ninth, request a clear remedy, such as time extension or termination. Tenth, continue performing unaffected obligations where possible. Eleventh, preserve all evidence and correspondence. Twelfth, object in writing to any unjustified delay penalty.
This checklist should be implemented immediately. In public procurement contracts, delay in documentation can be as dangerous as delay in performance.
Common Mistakes by Contractors
The first common mistake is treating force majeure as automatic. It is not automatic; it must satisfy Article 10 conditions.
The second mistake is missing the twenty-day written notice period.
The third mistake is relying on oral communications with the administration.
The fourth mistake is failing to obtain competent authority documents.
The fifth mistake is stopping performance entirely while only part of the contract is affected.
The sixth mistake is confusing cost increase with force majeure.
The seventh mistake is failing to show causation between the event and the specific contractual obligation.
The eighth mistake is not objecting to delay penalties or progress payment deductions.
Common Mistakes by Contracting Authorities
Contracting authorities also make recurring mistakes. They may reject force majeure claims without examining the concrete impact on the contract. They may demand performance despite official restrictions. They may impose delay penalties for periods affected by accepted force majeure. They may fail to distinguish between time extension and termination. They may ignore special Public Procurement Authority announcements issued after major disasters.
The administration should evaluate each application objectively, record its reasoning and choose the legally appropriate remedy: time extension, termination, rejection or another contract-specific result.
Legal Remedies in Force Majeure Disputes
Force majeure disputes may arise where the administration rejects the application, grants insufficient time extension, imposes delay penalties, refuses termination, calls the performance bond or treats the contractor as in default.
The correct legal remedy depends on the contract, administration decision and dispute stage. The contractor may need to submit an administrative application, object to progress payment deductions, challenge termination consequences, seek return of penalties, or file litigation before the competent court or administrative forum depending on the legal nature of the dispute.
Because public procurement contracts are document-heavy, the contractor’s success will usually depend on the quality of written notices, official evidence, correspondence, site records and technical reports.
Frequently Asked Questions
What is force majeure in Turkish public procurement contracts?
Force majeure is an extraordinary event that may justify time extension, contract termination or other relief if it falls within Article 10 of Law No. 4735 and satisfies all statutory conditions, including absence of contractor fault, prevention of performance, inability to remove the obstacle, written notice within twenty days and documentation by competent authorities.
Which events are listed as force majeure under Law No. 4735?
Article 10 lists natural disasters, lawful strikes, general epidemics, partial or general mobilization, and similar other cases to be determined by the Public Procurement Authority where necessary.
Is written notice required?
Yes. The contractor must notify the administration in writing within twenty days following the date when the force majeure event occurs.
Must the event be documented?
Yes. Article 10 requires documentation by competent authorities.
Does a force majeure application automatically suspend performance?
No. The Public Procurement Board has stated that an application under Article 10(e) does not remove the contractor’s obligation to continue performing the contract.
Can earthquakes be force majeure?
Yes. Natural disasters are listed under Article 10. After the 6 February 2023 earthquakes, the Public Procurement Authority announced practical guidance allowing administrations to decide, according to the concrete case, whether to grant time extension, terminate the contract or reject the contractor’s request.
Does force majeure automatically increase the contract price?
No. Force majeure is different from price difference. It may justify time extension or termination, but price increase depends on separate legal and contractual rules.
Conclusion
Force majeure in Turkish public procurement contracts is a powerful but strictly regulated legal mechanism. Article 10 of Law No. 4735 lists the events that may qualify and sets cumulative conditions for acceptance. The event must not arise from the contractor’s fault, must prevent performance, must be beyond the contractor’s power to remove, must be notified in writing within twenty days and must be documented by competent authorities.
For contractors, the key is speed and evidence. A force majeure event should trigger immediate written notice, official documentation, technical analysis and a clear request for time extension or termination. Contractors should continue performing unaffected obligations and should not assume that a pending application excuses all performance.
For administrations, the key is concrete assessment. The authority should examine the actual impact of the event on the contract, the contractor’s fault, mitigation possibilities, documentation and appropriate remedy.
For Turkish and foreign companies alike, force majeure is not simply a “disaster clause.” It is a legal procedure. Companies that understand Article 10, preserve evidence and act within the twenty-day notice period can protect themselves against penalties, termination and performance bond risks. Companies that delay, rely on oral statements or confuse commercial hardship with legal impossibility may lose important rights under Turkish public procurement contracts.
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