Public procurement regulation in Switzerland

October 2018

Executive Summary

The Swiss Confederation and its 26 cantons each have their own public procurement regimes. Each regime distinguishes between public procurements that fall within the ambit of international treaties and those that do not. Most of the public procurement notices (and many of the contract award notices) at federal, cantonal (and municipal) level are published online on www.simap.ch. Apart from that e-procurement is not well developed in Switzerland yet.
The public procurement regimes are currently undergoing a major revision. The objective of the revision is to harmonize the procurement regimes of the Swiss Confederation (national level) and the cantons and to implement the new WTO Agreement on Government Procurement (GPA) 2012. The revision also includes the enhancement of e-procurement. The revised regimes are planned to enter into force in 2020.

Preliminary Remarks on the Legal Framework in Switzerland

The Swiss Confederation and the 26 cantons each have the power to enact their own public procurement legislation for public procurements by entities on a national and cantonal/municipal level within the framework provided by international and national law. Thus, public procurement in Switzerland is regulated on three levels:

• International level: the WTO Agreement on Government Procurement (GPA), the bilateral Agreement between the European Community and the Swiss Confederation on certain Aspects of Government Procurement (EU-CH Agreement) and the EFTA Convention (Annex R). The EU-CH Agreement and the EFTA Convention extend the ambit of the GPA to municipalities and to additional sectors not mentioned in the GPA.
• National level: the Federal Act on Public Procurement (FAPP) and the Ordinance on Public Procurement (OPP).
• Cantonal and municipal level: the Intercantonal Agreement on Public Procurement (IAPP) and the Federal Act on the Internal Market (FAIM) provide the legal framework for legislation by the 26 cantons (for an overview of the legislation in the cantons and additional information on public procurement in the cantons and some municipalities see link).

Public procurements falling within the ambit of the international treaties are generally referred to as public procurements in the international treaty area. National and cantonal law contains specific rules for these public procurements which implement Switzerland‘s obligations under these treaties. Both national and cantonal legislation also contain provisions for public procurements outside the international treaty area, i.e. for public procurements (i) below the thresholds set by international law, (ii) by other procuring entities than the ones listed in the international treaties and (iii) for goods and services which are not listed in the international treaties. Please note that there are no (federal level) or only limited remedies (cantonal and municipal level) available to bidders with regard to public procurements outside the scope of the international treaties.

• Simap.ch: Most of the public procurement notices (and many of the contract award notices) on federal, cantonal and municipal level are published on this online portal: www.simap.ch (information available in German, French, Italian and English)
• Official journals of the following cantons contain publications of public procurement notices on the cantonal and municipal level:
  • Official Journal of the Canton of Aarau (“Amtsblatt des Kantons Aarau”)
  • Official Journal of the Canton of Appenzell Ausserrhoden (“Amtsblatt des Kantons Appenzell Ausserrhoden”) (requires login)
  • Official Journal of the Canton of Appenzell Innerhoden (“Volksfreund”) Volksfreund (not available online)
  • Official Journal of the Canton of Basel-Landschaft (“Amtsblatt des Kantons Basel-Landschaft”)
  • Official Journal of the Canton of Basel-Stadt (“Amtsblatt des Kantons Basel-Stadt”) (payment of a subscription fee required)
  • Official Journal of the Canton of Geneva («Feuille d’avis officielle de la République et Canton de Genève») (payment of a subscription fee required)
  • Official Journal of the Canton of Glarus (“Amtsblatt des Kantons Glarus”)
  • Official Journal of the Canton of Graubünden (“Amtsblatt des Kantons Graubünden”)
  • Official Journal of the Canton of Jura («Journal officiel de la République et Canton du Jura»)
  • Official Journal of the Canton of Luzern (“Luzerner Kantonsblatt”)
  • Official Journal of the Canton of Neuchâtel («Feuille officielle de la République et Canton de Neuchâtel») (registration required)
  • Official Journal of the Canton of Nidwalden (“Amtsblatt des Kantons Nidwalden”) (payment of a subscription fee required)
  • Official Journal of the Canton of Obwalden (“Amtsblatt des Kantons Obwalden”)
  • Official Journal of the Canton of Schaffhausen („Amtsblatt für den Kanton Schaffhausen“)
  • Official Journal of the Canton of Schwyz (“Amtsblatt des Kantons Schwyz”)
  • Official Journal of the Canton of St.Gallen (“Amtsblatt des Kantons St.Gallen”)
  • Official Journal of the Canton of Solothurn (“Amtsblatt des Kantons Solothurn”)
  • Official Journal of the Canton of Ticino (“Foglio Ufficiale della Repubblica e Cantone Ticino”)
  • Official Journal of the Canton of Thurgau (“Amtsblatt des Kantons Thurgau”)
  • Official Journal of the Canton of Uri (“Amtsblatt des Kantons Uri”)
  • Official Journal of the Canton of Vaud («Feuille des avis officiels du Canton de Vaud») (payment of a subscription fee required)
  • Official Journal of the Canton of Wallis (“Amtsblatt des Kantons Wallis”)
  • Official Journal of the Canton of Zug (“Amtsblatt des Kantons Zug”)
  • Official Journal of the Canton of Zurich (“Amtsblatt des Kantons Zürich”)

Thresholds applicable on the federal level in the international treaty area (in Swiss francs):

Outside the ambit of the international treaties a different set of federal rules applies regardless of any thresholds (see Articles 32 ss. OPP). However, thresholds may be relevant for the determination of the applicable procurement procedure.

Thresholds applicable on the cantonal and municipal level in the international treaty area (in Swiss francs):

• GPA

• EU-CH Agreement and EFTA Convention (additional thresholds)

Outside the ambit of the international treaties a different set of cantonal rules applies regardless of any thresholds. However, currently the following minimal thresholds determine the procurement procedures to be applied (in Swiss francs):

Please note that the cantons are free to stipulate lower thresholds.

In Switzerland, the following main procurement procedures exist:

• Open procedure („offenes Verfahren”): All interested providers/suppliers may submit a tender after the planned procurement has been published (Art. 14 FAPP; Art. 12 I a IAPP).
• Selective procedure (two-step procedure; „selektives Verfahren”): All interested providers/suppliers first submit their request to participate in the procurement procedure before the procuring entity decides, based on previously published qualitative selection criteria, which providers/suppliers it wants to invite to submit a tender (Art. 15 FAPP and Art. 12 OPP; Art. 12 I b IAPP).
• Invitation procedure („Einladungsverfahren”): The procuring entity chooses a certain amount of providers/suppliers which shall be invited to submit a tender without prior publication of the planned procurement (Art. 35 OPP; Art. 12 I lit. bbis IAPP).
• Limited procedure (direct award; „freihändiges Verfahren”): The procuring entity directly awards the contract to the provider/supplier of its choice (Art. 16 FAPP and Art. 13 and 36 OPP; Art. 12 I lit. c IAPP).
• Federal level: In the international treaty area, the procuring entity is free to choose between the open and the selective procedure (Art. 13 I FAPP). The limited procedure may only be used if certain requirements are fulfilled (examples: no tenders have been submitted in the open or selective procedure, due to technical reasons only one provider/supplier is in the position to provide the required goods or due to an unforeseeable event the procurement is of such urgency that there is no time for an open or selective procedure; Art. 13 I FAPP and Art. 13 OPP). Outside the international treaty area, the procuring entity may also use the invitation procedure (Art. 35 OPP) and the scope of application of the limited procedure is wider (Art. 36 OPP).
• Cantonal and municipal level: In the international treaty area, the procuring entity is free to choose between the open and the selective procedure. The limited procedure (direct award) may only be used exceptionally (Art. 12bis I IAPP). Outside the international treaty area, see answer to question 2 above (Art. 12bis II IAPP).
• A negotiation procedure does not exist in Switzerland. On a cantonal and municipal level, negotiations in public procurement proceedings are not permitted (except, of course, in the limited procedure). On a federal level, negotiations are permitted in the context of all procedures if (i) reference to negotiations is made in the tender notice and (ii) none of the bids submitted appears to be the most commercially advantageous (Art. 20 FAPP and Article 26 OPP).
• The dialogue exists in Switzerland in so far as it has been introduced in 2010 on the federal level as an element of the public procurement procedure. It may be applied – if explicitly mentioned in the tender notice – in the context of complex procurements or procurements regarding intellectual services in order to further develop approaches and courses of action suggested by bidders (Art. 26a OPP). In addition, a so-called planning and global solution competition (“Planungs- und Gesamtleistungswettbewerb”) exists which allows the procuring entity to evaluate different alternatives beforehand in order to then formulate the tender notice and procure the goods or services in one of the procedures described above (Art. 40 ss. OPP).

• There is no exclusive list of decisions which can be appealed.
• On a federal level, Art. 29 FAPP contains the following non-exclusive list of decisions which can be appealed, provided that the procurement falls within the scope of international treaties: The award of the contract, the discontinuation of the award procedure, the invitation to tender, the decision on the selection of participants in the selective procedure, the exclusion of a bidder from the procedure and the decision on registration of a provider/supplier under the terms of Art. 10 FAPP. Note that there are no appeals on the federal level against decisions regarding public procurements which do not fall within the ambit of international treaties (Art. 39 OPP).
• On a cantonal level, in principle, all decisions of a contracting authority both within and outside the international treaty area can be appealed (Art. 15 I IAPP and Art. 9 II FAIM). Art. 15 Ibis IAPP contains a (non-exclusive) list of appealable decisions similar to the one in Art. 29 FAPP on the federal level.

• A decision of a federal authority must be appealed within 20 days following publication of the decision or, if earlier, notification of the decision to the respective party (Art. 30 FAPP). On the cantonal level, the time limit is restricted to ten days (Art. 15 II IAPP). Appeals against decisions of the federal and cantonal review bodies to the Federal Supreme Court must be filed within 30 days (Art. 100 Federal Supreme Court Act).
• Further appeals are precluded after these time limits.

• A contracting authority may not award the contract until the time limit for an appeal has not expired (see answer to question 5 above) or, if an appeal has been filed, until the review body has decided whether to grant interim relief or not (Art. 22 FAPP; Art. 14 I IAPP).

• Federal level: Federal Administrative Court (Art. 27 FAPP).
• Cantonal level: Each canton must provide for at least one independent review body (usually the administrative court of the respective canton; Art. 15 I IAPP and Art. 9 II FAIM).
• Decisions of both the Federal Administrative Court and the cantonal review bodies may be appealed to the Federal Supreme Court if the estimated contract value exceeds the applicable threshold under the FAPP or EU-CH Agreement and a legal question of fundamental importance arises (Art. 82 s. Federal Supreme Court Act).

• On a federal level: Filing fees for an appeal depend on the (estimated) contract value and, generally, vary between 200 and 50,000 Swiss francs (Federal Administrative Court) or between 200 and 100,000 Swiss francs (Federal Supreme Court). The filing fees will be reimbursed if the appellant succeeds.
• On a cantonal level, filing fees for an appeal vary from canton to canton.

• An appeal does not have an automatic suspensive effect. Interim measures must be applied for (Art. 28 FAPP and 17 IAPP). On a cantonal level, Art. 17 II IAPP provides for the possibility of a court to grant interim relief ex officio which however, in practice, is hardly ever granted.

• It is disputed in Switzerland whether a contract which has been concluded in violation of procurement law (i) is void or must be cancelled or terminated or (ii) whether the review body may only declare its invalidity and award damages (Art. 32 FAPP; Art. 9 III FAIM and Art. 18 II IAPP). Damages on a federal level are limited to the amount of costs incurred by the tenderer in connection with the award procedure and appeal proceedings (Art. 34 II FAPP).

• Generally, it is forbidden to amend procurement contracts after awarding. However, it is allowed (i) to specify the contract, and/or (ii) to amend it in its material scope if the amendments are non-substantial, and/or (iii) to amend it if the limited procedure is applicable (e.g. in case of unforeseeable events, see question 3 above), and/or (iv) to execute tendered and awarded amendments (e.g. options and alternatives).
• Amendments are non-substantial (and, therefore, admissible, see ii above) if, for instance, they purely favour the contracting authority (e.g. additional discounts or improved products/services offered by the bidder), or it is sufficiently unlikely that a competitor of the bidder would have made a more favourable bid than the bidder actually did, with regard to the award criteria applied in the award procedure and taking the amendments into account.

• E-procurement is not fully available on federal and cantonal level. While the use of the e-procurement platform www.simap.ch is mandatory for the federal contracting authorities and some of the cantons and municipalities, its use by bidders is voluntary.
• If electronic submission is allowed, generally, it is mandatory for bidders to use a recognized e-signature.
• It is planned to amend current legislation on public procurement in order to fully allow e-procurement, including electronic auctions for standardized services. Entry into force is envisaged for 2020.