Public Procurement & Government Contracts 2022 Comparisons

Switzerland is a signatory to the WTO Government Procurement Agreement (GPA) and the Bilateral Agreement between the EU and Switzerland on Certain Aspects of Government Procurement (BilA), both of which contain congruent rules applicable to public procurements in signatory states.

These basic rules have been implemented in Switzerland by a set of national statutes. For procurements at the federal (ie, central state) level, the rules are included in the Act on Public Procurement (Bundesgesetz über das öffentliche Beschaffungswesen) and have been further detailed in the Ordinance on Public Procurement (Verordnung über das öffentliche Beschaffungswesen), both of which were recently revised and entered into force on 1 January 2021.

For procurements at the cantonal and municipal level, the rules are included in the Intercantonal Agreement on Public Procurement (Interkantonale Vereinbarung über das öffentliche Beschaffungswesen), the 2001 version of which was revised in 2019. The cantons are in the process of implementing the new 2019 version of the Agreement into their own cantonal legislation. It must be assessed for each canton separately whether the 2019 version has already entered into force.

Generally, all procurements by Swiss public entities are subject to the rules on public procurement law, which also apply to certain non-public entities if they are performing public tasks and are subsidised with public funds.

The entities that are subject to procurement law include:

• the federal government and its departments and offices;
• cantons and municipalities;
• institutions of public law at the cantonal and municipal level (eg, public building insurance or associations of municipalities);
• public and licensed private "sector enterprises" in the water, energy, transport and telecommunication sectors;
• other holders of cantonal or municipal functions; and
• suppliers of goods, services and construction services that are subsidised with public funds to more than 50% of the overall costs.

Cantons and municipalities, institutions of public law at the cantonal and municipal level and other holders of cantonal or municipal functions are exempted from the rules of public procurement law insofar as the procurement pertains to the commercial or industrial activities of these entities through which they are in full competition with other private providers.

The procurement rules apply to "public contracts" – ie, contracts between public entities, who themselves are subject to the procurement regulations, and tenderers for the performance of a public task. Public contracts involve financial compensation in return for the supply of goods, work or services. The delegation of a public task or the granting of a concession is deemed to be a public contract if it conveys exclusive or special rights that the tenderer exercises in the public interest.

Contracts by which public entities sell goods or services are not subject to the procurement regulations.

The applicable procurement procedure differs according to the value of a procurement.

Procurements in Scope of the International Thresholds

Based on the applicable international agreements (ie, the GPA and BilA), procurements meeting the following thresholds require the open or selective procedure. These thresholds are subject to adaptations by the government and are partly different for "sector enterprises". For procurements at the federal level, the thresholds are set as follows:

• CHF230,000 for deliveries, and CHF700,000 (GPA) or CHF640,000 (BilA) for "sector enterprises";
• CHF230,000 for services, and CHF700,000 (GPA) or CHF640,000 (BilA) for "sector enterprises"; and
• CHF8.7 million for construction services.

For procurements at the cantonal and municipal level, the thresholds are set as follows:

• CHF350,000 for deliveries, and CHF700,000 (GPA) or CHF640,000 (BilA) for "sector enterprises";
• CHF350,000 for services, and CHF700,000 (GPA) or CHF640,000 (BilA) for "sector enterprises"; and
• CHF8.7 million for construction services.

Procurements below the International Thresholds

The international agreements and the rules provided therein are not applicable for procurements with a value below these thresholds. However, when implementing the international rules into Swiss law, the Swiss legislator decided to lower the international thresholds. These national thresholds, which are also subject to adaptations by the government, are as follows.

• Free-hand awards can be made:
1. for deliveries under CHF150,000;
2. for services under CHF150,000;
3. for construction work at the federal level under CHF150,000; and
4. for construction work at the cantonal and municipal level:
1. under CHF150,000 for secondary construction work; and
2. under CHF300,000 for primary construction work.
• Awards on invitation must be made:
1. for deliveries of between CHF150,000 and CHF230,000 (federal level) or CHF250,000 (cantonal and municipal level);
2. for services of between CHF150,000 and CHF230,000 (federal level) or CHF250,000 (cantonal and municipal level);
3. for construction work at the federal level of between CHF300,000 and CHF2 million; and
4. for construction work at the cantonal and municipal level:
1. for secondary construction work of between CHF150,000 and CHF250,000; and
2. for primary construction work of between CHF300,000 and CHF500,000.
• Open or selective procedures must be chosen for the following:
1. deliveries from CHF230,000 (federal level) or CHF250,000 (cantonal and municipal level);
2. services from CHF230,000 (federal level) or CHF250,000 (cantonal and municipal level);
3. construction work at the federal level from CHF2 million; and
4. construction work at the cantonal and municipal level:
1. for secondary construction work from CHF250,000; and
2. for primary construction work from CHF500,000.

Certain cantons have further lowered these thresholds in their cantonal legislation.

Interested tenderers from other jurisdictions have a right to participate in a Swiss award procedure if their state of origin applies the same right to Swiss tenderers. This is, at least, the case for all signatory states of the GPA and BilA to the extent that the thresholds of applicability of these international agreements are reached.

The legislation aims for the cost-efficient use of public funds in an economically, ecologically and socially sustainable manner. Therefore, the procedural principles in the procurement legislation are designed to increase competition between bidders, while assuring their equal treatment and the transparency of the award procedure. These main principles – ie, the economic use of funds, the equal treatment and the transparency of the procedure vis-à-vis the bidders – govern the entire public procurement law and serve as interpretation guidelines for the implementation of the legislation.

As a result of these main principles, the rules applying to an individual public tender procedure must be set from the beginning in the call for tender and cannot be materially changed thereafter. Furthermore, they must be set in a way that assures the equal treatment of bidders, so it is prohibited to design them in a manner that gives advantages to a particular bidder. Price negotiations with individual bidders are prohibited.

Calls for tender and subsequent awards must be published on simap.ch, the electronic platform shared by the federal government, cantons and municipalities for public procurement purposes. The publication of the call for tender must include the identity of the awarding entity, a description of the object procured, the deadline for submitting offers and the address where the tender documentation can be obtained. The publication of the award must mention the applicable procurement procedure, the object procured, the awarding entity, the name and address of the winner of the award, and the price of the winning offer.

An awarding entity is not generally excluded from carrying out preliminary market consultations before launching the contract award procedure, but it will have to ensure that it complies with the principle of equal treatment. It is obliged to disclose the results of the market consultation in the tender documentation. Furthermore, it will have to exclude from the award procedure all offerors who participated in the preparation of the award procedure if their competitive advantage cannot be compensated adequately in order to assure equal treatment. Therefore, both awarding entities and potential offerors will have to act very carefully in a market consultation if they want to avoid having to exclude consulted offerors from the future award procedure.

The relevant Swiss legislation provides for four different types of award procedures:

• the open procedure;
• the selective procedure;
• the procedure on invitation; and
• the free-hand award.

Open and Selective Procedures

The most commonly used procedure is the open procedure, where the awarding entity publishes a call for tender. All interested bidders can participate in the open procedure.

The selective procedure also starts with the publication of a call for tender, but this includes criteria on the pre-selection of bidders. Only bidders that apply for pre-selection and fulfil the respective criteria will be allowed to submit bids.

The open and selective procedures are strongly formalised in order to assure that bidders are treated equally. After the call for bids has been published, the awarding entity regularly invites bidders to a meeting at which questions can be discussed. Thereupon, bids need to be submitted in an anonymised format and within the deadline set in the call for bids. After the opening of the bids, which must be documented in minutes, the awarding entity analyses the bids according to the pre-defined award criteria. The result will be formally notified to the bidders. The conclusion of the contract with the winning bidder must not take place before the applicable appeal deadline has expired.

Procedure on Invitation and Free-hand Awards

The procedure on invitation applies to procurements that are outside the scope of international treaties. It is less formal. While the awarding entity must generally invite at least three bidders, it has a high margin of discretion in selecting which bidders it wants to invite.

The free-hand award is the most informal procedure, under which the awarding entity can simply choose, at its discretion, the company with which it wants to conclude a contract.

The Applicable Procedure and Exceptions

The applicable tender procedure is defined by the value thresholds (see 1.3 Types of Contracts Subject to Procurement Regulation). The awarding entity cannot freely choose the type of procedure. There are three exceptions.

• The first exception pertains to the open and selective procedure. These two types of procedure are perceived as being equivalent so the awarding entity can freely choose either of them. In practice, awarding entities predominantly opt for the open procedure.
• The second exception covers cases where the awarding entity decides to choose a more formal type of procedure than the applicable thresholds provide for – eg, an open procedure instead of a procedure on invitation. The awarding entity has the discretion to do so but, once it has chosen the more formal type of procedure for a certain procurement, it cannot switch back to the less formal type.
• As a third exception, the applicable rules allow under certain conditions that a free-hand award can be made even though the threshold for a more formal procedure has been met, including in the following cases:
1. where only one possible supplier is able to perform the work due to technical reasons;
2. where the procurement is urgent due to unexpected events that are not attributable to the awarding entity; or
3. where replacing or supplementing an existing good or service would lead to substantial additional costs if a different supplier were chosen from the one that delivered in the past. Legally, these free-hand exceptions must be construed restrictively – although, in practice, they are often used broadly by the awarding entities in order to avoid the burden of formal award procedures.

Negotiations and Auctions

The possibility for awarding entities to negotiate contracts is very limited; as a general rule, awarding entities have to award the contract to the bidder that offered the most advantageous bid. The assessment of the bids must be made exclusively based on pre-defined award criteria, with two exceptions:

• in free-hand award procedures, awarding entities are free to negotiate prices; and
• the new procurement law introduced the use of electronic auctions, as of 2021.

These auctions take place without disclosing the bidders. In turn, the possibility in award procedures for federal entities to make price negotiations under certain conditions has been deleted from the new procurement law. Bidding rounds are now forbidden.

The applicable tender procedure is defined by the value thresholds set by the legislation. The awarding entity cannot freely choose the type of procedure (see 2.3 Tender Procedure for the Award of a Contract).

Except for free-hand awards, the awarding entity generally needs to provide all the information and specifications that are relevant to making a bid in the documentation accompanying the call or invitation for tender. Generally, the relevant documentation also includes a template agreement, which serves as a basis for the award.

For reasons of equal treatment and transparency, the awarding entity is prohibited from changing the relevant specifications and terms of the procurement in the course of the award procedure. Therefore, it generally cannot negotiate individual contract terms with bidders, but rather states unilaterally at the beginning of the procedure what the applicable terms are.

The legislation stipulates that the time limit to submit offers or requests for participation must be set by the authority in a manner that gives offerors ample time to review the tender documentation and prepare the offer. The authority must have particular regard to the complexity of the procurement when setting the time limit.

The legislation sets explicit minimum time limits for open and selective procedures. In the open procedure, the minimum time limit is 40 days from the publication of the call for tender. In selective procedures, the minimum time limit for submitting a request for participation amounts to 25 days from the publication of the call for interest and 40 days for submitting the offer from the date of invitation. These time limits can be shortened to ten days in cases of great urgency. In practice, authorities often set the time limit at two months or more.

Interested parties must meet certain legal conditions in order to be eligible to participate in a procurement process.

• First, the awarding entity is prohibited from granting an award to a bidder that does not comply with the applicable laws on the protection of employees or that discriminates against staff according to gender. These rules are particularly relevant in the building sector, where contractors often use subcontractors with staff coming from abroad. The employee protection rules contain minimum wage stipulations in order to prevent "wage dumping" (ie, foreign staff being hired for much lower wages). These minimum wage rates are not always complied with, and awarding entities increasingly hold the main contractor liable for infringements by its subcontractors.
• Second, bidders may not participate in the award procedure if they do not pay the imposed taxes and social security contributions, if they do not comply with the provisions on environmental protection or if they are in bankruptcy proceedings.
• Third, bidders may be excluded if they have entered into anti-competitive agreements, which is increasingly relevant given the increased detection of competition law infringements in various sectors. This is particularly true in the building sector, where several anti-competitive agreements have been detected.

Apart from these legal conditions, the awarding entity is responsible for setting the criteria that must be met by interested parties in order to be able to participate in a procurement process. It can define so-called suitability criteria that a bidder must fulfil in order for their offer to be assessed. These suitability criteria pertain to factors such as financial good-standing or technical performance levels. They are designed to assure that only those bidders that are apt to fulfil the relevant tasks can be granted an award.

These criteria must be objective and verifiable, and must assure the equal treatment of all bidders. The applicable law provides for the possibility to set up directories of bidders that are suitable for a certain type of bid. Companies included in these directories are deemed to be suitable and must only demonstrate that they are in the directory. If a company is excluded from the directory against its will, it can challenge this decision in court.

The number of suppliers that can participate in a procurement process can be restricted only under limited circumstances. No such restriction is possible in the open procedure. The selective procedure indirectly allows the number of suppliers to be limited, in that the interested parties need to apply for participation and have to show that they fulfil the suitability criteria.

By including strict qualitative standards, the authority will often be able to reduce the number of participants. Furthermore, the legislation allows the awarding entity to limit the number of bidders that reach the second stage of submitting an offer in selective procedures as long as a sufficient level of effective competition is maintained; in general, at least three participants should be allowed to submit an offer.

In invitation procedures, the authority is requested by law to invite at least three bidders, if possible. However, it is free to select these. For free-hand awards, the legislation has not set a minimum number.

The procurement must be awarded to the most advantageous offer. While the price of the offer is an important criterion in the award process, it is often supplemented by additional criteria, such as quality aspects, ecological factors, customer service, expedience of the service, aesthetics or technical value.

However, these additional factors must be designed so as not to discriminate against non-local bidders as opposed to local bidders. According to the case law under the former procurement law, the price-related criteria must generally be allocated at least 20% of the weighing factors for the award.

It is yet to be seen whether this case law will remain applicable under the new procurement law of 2021, which emphasises the possibility of taking quality aspects into consideration.

The suitability and evaluation criteria must be disclosed in the call for bids or the tender documentation. Furthermore, the evaluation criteria need to be listed in order of their importance. Based on the principle of transparency, the authority must not change the criteria, or their importance, after the call for bids.

All formal decisions of the awarding authority, including the call for bids, the decision on selecting interested parties in the selective procedure and the award must be published on simap.ch, the electronic platform shared by the federal government, cantons and municipalities for public procurement purposes. In practice, the authority often additionally notifies the interested parties by letter. The decision must contain a summary reasoning. Upon the request of an interested party that has not been selected for participation, the authority is obliged to inform it of the most material reasons for its non-selection.

All formal decisions of the awarding authority, including the award, must be published on simap.ch, the electronic platform shared by the federal government, cantons and municipalities for public procurement purposes. In practice, the authority generally notifies the bidders in addition by letter. The publication of the award must contain a summary reasoning that includes:

• the name of the selected bidder;
• the price of the selected offer or, exceptionally, the highest and lowest offer; and
• the decisive features and advantages of the selected offer.

Upon the request of a bidder whose offer has not been selected, the authority is obliged to inform such bidder of the most material reasons for its non-selection.

The awarding authority must not conclude the awarded contract before the deadline for appeals has expired. The deadline starts with the publication of the award and amounts to 20 calendar days. In the case of an appeal, the courts have the right, upon request, to suspend the awarding authority's right to conclude the contract for the duration of the procedure.

In the absence of such an interim order, the awarding authority is entitled to enter into the contract. In this case, it cannot be obliged at a later stage to terminate the contract, even if a competent court decides that the award was not compliant with the law.

The competence to decide appeals depends on whether the awarding entity belongs to the federal level or the cantonal or municipal level. The competent court for orders of federal awarding authorities is the Federal Administrative Court, while the competent court for an order at the cantonal or municipal level is the cantonal court of the canton to which the awarding authority belongs. The cantons have often allocated procurement matters to the cantonal administrative court.

The decisions of the first-instance court can be appealed to the Federal Supreme Court but the appeal will only be heard if, cumulatively:

• the value of the award exceeds the thresholds of the GPA and BilA; and
• the appeal brings forward a fundamental legal question that has not yet been answered.

The appellant has to plead and show in detail that these conditions are fulfilled. If they are not fulfilled, the Federal Supreme Court will not review the appeal. If they are fulfilled, the Federal Supreme Court will review the appeal and will answer not only the fundamental legal question but also any other relevant legal question, although it does not deal with questions of fact. The decision of the Federal Supreme Court is final and binding.

The courts generally have the right to annul orders of awarding entities or to substitute the decision of an awarding entity by their own decision. Theoretically, the courts are entitled to award the tender to the successful appellant unless questions of discretion must be assessed or further fact-finding must be done. In practice, the courts refer the case back to the awarding entity if they annul the award and abstain from awarding the tender themselves. The same applies to cases where the call for bids has been appealed. Where (as it is the rule) the annulled clause of the call for bids is based on discretion, the courts will not be entitled to change the content of the call for bids but will only have a right to annul it and give the awarding entity the possibility to amend it in a compliant way.

If the contract has already been concluded by the awarding entity, the legislation entitles the courts to annul the award but not to terminate the contract. However, some cantonal courts have started to order the awarding entity to terminate the contract at the earliest possible event in cases where unpublished free-hand awards were made, even though the entity would have had to use an open or selective procedure and the contract was already concluded before the appeal was made.

Interim measures of courts are very important in appeal procedures in Switzerland because they are the only means to prevent the awarding entity from concluding the contract with the recipient of an award. The appeal has no suspensive effect unless such effect is granted by the court. This means that the awarding entity is entitled to conclude the contract with the recipient of the award unless it is prohibited from doing so by the court.

If it is not prohibited, the contract would remain binding even though a court, at a later stage, could come to the conclusion that the award was unlawful. The appellant's right would then be limited to compensation for the costs incurred by preparing the offer. Therefore, it is of utmost importance to ask the court explicitly in the appeal that a suspensive effect be granted.

If a suspensive effect is requested, the competent court makes a prima facie decision on the merits of the case and, in the case of a prima facie infringement of procurement law, weighs the interest in compliance with procurement law against the interest of the awarding entity in a swift performance of the awarded work or service. In order to be successful with a request for suspensive effect, it is important to demonstrate convincingly in the appeal that there has been a prima facie infringement of procurement law.

For procurement procedures of federal entities, it is important to note that the courts will only be allowed to annul an order of the awarding authority if the procurement falls into the scope of the GPA or BilA; for all other procurements, the court can only state that the order infringes the law. Therefore, the procurement value must be above the thresholds of the GPA and BilA for a decision of annulment (see 1.3 Types of Contracts Subject to Procurement Regulation for details). Furthermore, appeals in the procurement of services can only lead to an annulment of the order if the type of procured services is listed on the so-called positive list of appendix 1 annex 4 of the GPA. Procurements of the Swiss military can only lead to annulments of the order if they are listed on the positive list.

The right to appeal depends on the type of order issued by the awarding authority.

The call for bids can be appealed by those interested parties that can demonstrate that they would want to participate in the bid and are a potential offeror that could supply the relevant good or perform the relevant service.

The right to appeal against an award is generally limited to those parties that are able to demonstrate that they would have been awarded the contract if the awarding entity had complied with the law. All other parties of the award procedure are not entitled to appeal.

There is an exception to this rule pertaining to free-hand awards. If a free-hand award is challenged with the argument that the awarding entity would have had to conduct an open or selective procedure, the appeal can be lodged by each potential offeror that could supply the relevant good or perform the relevant service.

The deadline for filing appeals is very short and non-extendable, amounting to 20 calendar days (for tenders at the cantonal and municipal level of those cantons that have not yet adopted the new Intercantonal Agreement on Public Procurement of 2019, the deadline continues to be ten calendar days; see 1.1 Legislation Regulating the Procurement of Government Contracts). The deadline starts to run from the publication of the award or, when no publication is made, such as for free-hand awards, from the time the appellant acquires sufficient knowledge of the award in order to be able to lodge an appeal.

Furthermore, it is important to note that parties must already appeal against the call for tenders if they want to challenge a condition of the tender. For example, this might be the case where the object of a tender has been designed in a way that is to the advantage of a certain offeror, where the published assessment criteria are not legally compliant, or where the deadline for submitting bids is too short. In these cases, the parties cannot wait until the award is made to challenge the content of the call for bids. Hence, appeals against the award can only be directed towards legal issues that could not already have been challenged at the time of the call for bids.

Procurement appeal procedures generally last between three months and two years, depending on the complexity of the case.

Appeals procedures in Switzerland are still relatively rare, but have consistently increased over the past few years. The main business areas likely to experience appeals are construction and IT. Larger cantons see more appeals than smaller, more rural cantons. On average, it is assumed that first-instance courts review between five and 20 procurement appeals per year. Only very few of these go to the Federal Supreme Court, which hears on average about five to ten procurement cases per year.

The typical costs for court expenses and attorneys in first-instance appeals are estimated to amount to between CHF15,000 and CHF30,000.

The principle of equal treatment and transparency requires the object of a procurement to remain the same during the whole award procedure and not to change following the award. Therefore, legally speaking, there is only very limited room for modifications to procurement contracts after the award. Any modification that has an influence on the price would not be legally permissible but would rather require that the procedure be restarted. However, the authority or the awarded company sometimes initiates contractual discussions following the award.

Under certain circumstances, the legislation permits free-hand awards to be made even though the value thresholds of a more formal procedure (eg, an open procedure) are reached. These exceptional circumstances must be applied restrictively and it is for the awarding entity to prove that the applicable conditions are fulfilled. Furthermore, the awarding entity is obliged to publish the award, which gives interested parties the possibility to appeal against the award by asserting that the conditions for a free-hand award were not fulfilled.

The main cases of permissible exceptional free-hand awards are as follows:

• based on technical reasons or for reasons of the protection of intellectual property rights, only one specific supplier can provide the object of the procurement and no appropriate alternative exists;
• the procurement becomes very urgent due to unforeseen events, through no fault of the awarding entity;
• goods or services already lawfully supplied require a replacement or extension that can only be provided by the original supplier because only this ensures compatibility with the existing goods or services; and
• goods can be sourced in the framework of a temporary opportunity for a price that is significantly below the ordinary price.

In 2020, the Swiss Supreme Court decided that courts are only allowed to directly award tenders to appellants in appeal procedures in exceptional cases. In general, they are only allowed to annul the award and send the case back to the awarding authority for reassessment of the award. It would only be different if no questions of discretion must be assessed and no further fact-finding must be done – for example, in cases where only two offerors participated in the tender and the factual questions are all clear.

In June 2019, the Swiss parliament adopted a revision of the procurement legislation that entered into force on 1 January 2021 on the federal level and will enter into force on the cantonal and municipal level separately for each canton. This article reflects the newly introduced rules. It is important to note that the former rules remain applicable for procurement procedures initiated under the former law.