4735 sayılı Kamu İhale Sözleşmeleri Kanunun 20. maddesi;
“Aşağıda belirtilen hallerde idare sözleşmeyi fesheder:
a) Yüklenicinin taahhüdünü ihale dokümanı ve sözleşme hükümlerine uygun olarak yerine getirmemesi veya işi süresinde bitirmemesi üzerine, ihale dokümanında belirlenen oranda gecikme cezası uygulanmak üzere, idarenin en az on gün süreli ve nedenleri açıkça belirtilen ihtarına rağmen aynı durumun devam etmesi,
b) Sözleşmenin uygulanması sırasında yüklenicinin 25 inci maddede sayılan yasak fiil veya davranışlarda bulunduğunun tespit edilmesi,
Hallerinde, ayrıca protesto çekmeye gerek kalmaksızın kesin teminat ve varsa ek kesin teminatlar gelir kaydedilir ve sözleşme feshedilerek hesabı genel hükümlere göre tasfiye edilir.” hükmünü amirdir.
İdarece sözleşme feshine gerekçe yapılan “işi süresinde bitirmeme” durumunda sözleşmenin feshi yoluna gidilebilmesi için “idarenin en az on gün süreli ve nedenleri açıkça belirtilen ihtarı” gereklidir. Bu durumda sözleşmenin feshi için ayrıca “idarenin en az on gün süreli ve nedenleri açıkça belirtilen ihtarına rağmen aynı durumun devam etmesi” şartı da aranacaktır.
Anılan asgari şartlar gerçekleşmeden sözleşmenin feshinin haksız olacağı düşünülmektedir.
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