The revised Swiss procurement law came into force on 1 January 2021. The Federal Parliament passed the new Federal Act on Public Procurement (Bundesgesetz über das öffentliche Beschaffungswesen; BöB) on 21 June 2019 and the Federal Council adopted the revised Ordinance on Public Procurement (Verordnung über das öffentliche Beschaffungswesen; VöB) on 12 February 2020.
Also on 21 June 2019, the National Council and Council of States unanimously adopted the revised WTO Agreement on Government Procurement (GPA 2012) (with one abstention in the National Council). The cantons also unanimously adopted the totally revised Intercantonal Agreement on Public Procurement (Interkantonale Vereinbarung über das öffentliche Beschaffungswesen; IVöB) on 15 November 2019.
The implementation instruments are currently being developed at the federal level. At the cantonal level, the accession procedures to the IVöB are pending. As soon as two cantons have joined, the agreement will come into force. Currently (as of 21 December 2020), several cantons (including AG, AI, BE, BS, SZ, VD, ZH) have already initiated the accession procedure. The harmonisation goal will not be achieved until all cantons have decided to join the IVöB.
Goals of the revision
In addition to the implementation of the GPA 2012 into national legislation, the main objective of the revision is to harmonise the procurement regulations of the Federation and the cantons as far as possible and reasonable. This corresponds to a requested concern of the economy, as the previous heterogeneous legal situation led to unnecessary legal uncertainties and costly procedures. To this end, the revised IVöB was no longer conceived as a framework agreement, as was the previous one, but as framework legislation that also regulates detailed issues. This is intended to ensure the greatest possible harmonisation of public procurement law at the cantonal level. The scope of the cantons to enact special regulations is clearly limited with the new IVöB.
Main changes
The paradigm shift in public procurement defined by Parliament – more sustainability and quality competition – is of great importance. With regard to the procurement procedure and tender documents, the following topics in particular are part of the changes:
- Sustainability: As a legal objective in Art. 2 lit. a BöB/ IVöB. In addition to price, sustainability (such as labour or environmental protection conditions) can also be taken into account in particular when awarding services and contracts (Art. 29 BöB / IVöB). The most beneficial tender (previously “the most economically advantageous”) will now be awarded the contract (Art. 41 BöB / IVöB). This should allow for an optimal fulfilment of the award criteria within the framework of a comprehensive assessment. Quality competition among the tenderers is to be brought to the fore.
- Measures against corruption and collusion: Procurement transactions are susceptible to corruption and collusion. For this reason, the new BöB / IVöB contains a list of offences that allow for the exclusion or more extensive sanctioning of tenderers (Art. 44, 45 BöB / IVöB).
- Instruments in the award procedure: Art. 23 BöB / IVöB now provides for the possibility of an electronic auction for the procurement of standardised services. Pursuant to Art. 24 BöB / IVöB, in the case of complex contracts, intellectual services or the procurement of innovative services, a contracting authority may conduct a so-called dialogue with the aim of specifying the subject matter of the service as well as determining and defining the solutions or procedures.
- Justification for limited tendering (Art. 21 BöB / IVöB): There are new principles and requirements for the limited tendering.
- Submission deadlines and court holidays (Art. 46, 47 and 56 BöB / IVöB): The deadline regulation for the submission of tenders has been adapted. For the state treaty area, shortened deadlines are possible. The deadlines at federal and cantonal level have been harmonised. Appeal deadlines no longer stand still during court holidays.
- Market clarifications, abortions of proceedings, protocol on the opening of tenders and language of publication (Art. 14 BöB / IVöB, Art. 37 and 43 BöB / IVöB, Art. 48 BöB / IVöB): Further innovations concern market clarifications and preliminary referrals, extended reasons for abortions of proceedings, the minimum contents of the protocol on the opening of tenders as well as the new language requirements for publications.
Transitional law
The time of initiation of the award procedure is decisive for the applicable law. While the BöB is already in force, accession to the IVöB is for example still unclear in the Canton of Zurich, but probably not before 1 January 2022.
Conclusion
The previously confusing legal basis of public procurement will be structured more clearly through the revision and will also be further harmonised between the Federation and the cantons in particular. Many ambiguities have been eliminated, terms defined, and the new provisions largely reflect previous court practice. Quality competition among tenderers is brought to the fore. Instead of the most economically advantageous tender, the most beneficial tender will be awarded the contract in future. Whether this paradigm shift from “cheapest” to “best” will prevail will probably have to be judged in the future.
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