This Act applies to the awarding of public contracts by contracting authorities subject to it both within and outside the scope of international treaties.

The purpose of this Act is to ensure:

a.

the cost-efficient use of public funds in a manner that is economically, ecologically and socially sustainable;

b.

the transparency of the award procedure;

c.

equal treatment and non-discrimination of tenderers;

d.

the promotion of effective, fair competition among tenderers, in particular by means of measures against unlawful agreements affecting competition and measures against corruption.

In this Act:

a.

tenderer means an individual or legal entity under private or public law, or a group of such persons or entities, which supplies goods, work or services or which applies to participate in a public tender, the delegation of a public task or the granting of a concession;

b.

public undertaking means an undertaking over which public authorities may directly or indirectly exercise a dominant influence by virtue of their ownership, their financial participation, or the rules which govern it; a dominant influence is presumed to exist if the undertaking's assets are predominantly financed by the state or by other public undertakings, if its management is subject to supervision by the state or by other public undertakings, or if its administrative, managerial or supervisory bodies are made up predominantly of members appointed by the state or by other public undertakings;

c.

scope of international treaties means the scope of application of Switzerland's international obligations concerning public procurement;

d.

terms and conditions of employment means the mandatory provisions of the Swiss Code of Obligations⁶ concerning the employment contract, normative provisions of collective and standard employment contracts or, in the absence of these, the employment conditions customary in the place of work and in the sector;

e.

workplace health and safety regulations are provisions of public employment law, including the provisions of the Federal Act of 13 March 1964⁷ on Employment in Business, Trade and Industry and the related implementing legislation, as well as the provisions on accident prevention.

When awarding public contracts, the contracting authority shall observe the following procedural principles:

a.

It shall carry out award procedures transparently, objectively and impartially.

b.

It shall take measures against conflicts of interest, unlawful agreements affecting competition and against corruption.

c.

It shall ensure equal treatment of tenderers at all stages of the procedure.

d.

It shall dispense with bidding rounds.

e.

It shall safeguard the confidential nature of the information provided by tenderers.

¹ For goods, work and services to be provided in Switzerland, the contracting authority shall award a public contract only to tenderers that comply with the workplace health and safety regulations and the terms and conditions of employment applicable at the place of performance, the notification and authorisation duties in accordance with the Federal Act of 17 June 2005¹¹ on Measures to Combat Illegal Employment (IEA) and the provisions on the equal treatment of men and women in terms of equal pay.

² For goods, work and services to be provided abroad, the contracting authority shall award a public contract only to tenderers that comply as a minimum with the Core Conventions of the International Labour Organization (ILO) in accordance with Annex 6. In addition, the contracting authority may require compliance with other important international labour standards, as well as appropriate evidence, and may arrange for checks to be carried out.

³ The contracting authority shall award a public contract only to tenderers that comply as a minimum with the legal provisions on the protection of the environment and the conservation of natural resources applicable at the place of performance; in Switzerland, these include the provisions of Swiss environmental law, and abroad the international conventions for the protection of the environment designated by the Federal Council.

⁴ Subcontractors are obliged to comply with the requirements set out in paragraphs 1 to 3. These obligations must be included in the agreements between tenderers and subcontractors.

⁵ The contracting authority may check compliance with the requirements set out in paragraphs 1 to 3 or outsource the task, provided this task was not delegated to an authority governed by special legislation or another suitable body, in particular a supervisory body with equal representation. The contracting authority may provide the authority or supervisory body with the necessary information and documents for carrying out these checks. The tenderer has to provide the evidence required upon request.

⁶ The authorities and supervisory bodies responsible for ensuring compliance with the requirements set out in paragraphs 1 to 3 report to the contracting authority on the results of the checks and on any measures taken.

¹ Persons may not participate in the award procedure on the contracting authority's behalf or in a panel of experts if they:

a.

have a personal interest in a contract;

b.

are connected to a tenderer or a member of one of its governing bodies by marriage or registered partnership, or cohabit de facto with this party;

c.

are related to a tenderer or a member of one of its governing bodies by blood or by marriage in a direct line or collaterally to the third degree;

d.

are representatives of a tenderer or worked for a tenderer on the same matter; or

e.

lack the independence necessary to carry out public procurements for other reasons.

² A recusal request must be submitted immediately after the reason for recusal becomes known.

³ Decisions on recusal requests are made by the contracting authority or the panel of experts, excluding the person concerned.

¹ Tenderers that were involved in the preparation of an award procedure are not permitted to submit a tender if the competitive advantage that they gain cannot be offset by appropriate means and if the exclusion does not jeopardise effective competition between tenderers.

² Appropriate means of offsetting the competitive advantage include in particular:

a.

the disclosure of all material information about the preparatory work;

b.

the disclosure of the parties involved in the preparatory work;

c.

the extension of minimum deadlines.

³ Any market clarification by the contracting authority prior to the public invitation to tender does not lead to prior involvement of the tenderers in question. The contracting authority discloses the results of the market clarification in the tender documentation.

¹ The contracting authority shall estimate the probable value of the contract.

² A public contract may not be split up in order to circumvent provisions of this Act.

³ When estimating the value of the contract, all of the goods, work and services to be put out to tender, as well as remuneration that is closely related materially or legally, must be taken into account. All remuneration components must be taken into account, including extension options and options for subsequent contracts, as well as all expected premiums, fees, commissions and interest, excluding value added tax.

⁴ In the case of fixed-term contracts, the contract value is calculated on the basis of the total remuneration over the entire term, including any extension options. As a rule, the fixed term may not exceed 5 years. A longer term may be envisaged in justified cases.

⁵ For open-ended contracts, the contract value is calculated by multiplying the monthly remuneration by 48.

⁶ In the case of contracts for goods, work or services required on a recurring basis, the contract value is calculated on the basis of the remuneration paid for such goods, work or services during the last 12 months or, in the case of an initial contract, on the basis of the estimated requirements over the next 12 months.

¹ The choice of procedure depends on the value of the contract and the thresholds in accordance with Annex 4. The Federal Council periodically adjusts the thresholds in line with international obligations after consulting the Intercantonal Public Procurement Body.

² The Confederation guarantees the participation of the cantons in any adjustment of international obligations with regard to the thresholds.

³ If several contracting authorities subject to this Act, each with different thresholds, participate in a procurement, the thresholds of the contracting authority that provides the most financing apply to the entire procurement.

⁴ If the total value of several construction work items listed in section 1 of Annex 1 for the realisation of a structure reaches the threshold for the scope of international treaties, the provisions of this Act that govern procurements within the scope of international treaties apply. However, if the value of each individual construction work item is less than CHF 2 million and the total value of these items does not exceed 20% of the structure's total value, they are subject to the provisions for procurements outside the scope of international treaties (de minimis clause).

⁵ The applicable procedure for construction work outside the scope of international treaties is determined on the basis of the value of the individual construction work items.

Depending on the value of the contract and the thresholds, the contracting authority may choose to award public contracts by open procedure, selective procedure, invitation procedure or direct award procedure.

¹ In the open procedure, the contracting authority issues a public invitation tender.

² All tenderers may submit a tender.

¹ In the selective procedure, the contracting authority issues a public invitation to tender and invites the tenderers to submit a request to participate first.

² The contracting authority selects the tenderers that may submit a tender based on their eligibility.

³ The contracting authority may limit the number of tenderers permitted to tender, provided that effective competition is maintained. If possible, at least three tenderers are permitted to submit tenders.

¹ The invitation procedure applies to public contracts outside the scope of international treaties in accordance with the thresholds in Annex 4.

² In the invitation procedure, the contracting authority invites the tenderers of its choice to submit tenders without launching a public invitation to tender. It prepares tender documentation for this purpose. If possible, at least three tenders are obtained.

³ An invitation procedure without observing the thresholds may be used for the procurement of weapons, ammunition, war material and, provided they are essential for defence and security purposes, other supplies of goods, construction work, services and research or development services.

¹ In the direct award procedure, the contracting authority awards a public contract directly without an invitation to tender. The contracting authority is entitled to obtain comparative quotes and to conduct negotiations.

² The contracting authority may award a contract using the direct award procedure irrespective of the threshold value if one of the following conditions is met:

a.

In the open, selective or invitation procedure, no tenders or requests to participate are received, no tender meets the essential requirements of the tender or the technical specifications, or no tenderer meets the eligibility criteria.

b.

There are sufficient indications that all of the tenders received in the open, selective or invitation procedure are based on unlawful agreements affecting competition.

c.

Due to the technical or artistic features of the contract or for reasons of intellectual property protection, only one tenderer is eligible and there is no appropriate alternative.

d.

Due to unforeseeable events, procurement becomes so urgent that, even with shortened deadlines, an open, selective or invitation procedure cannot be carried out.

e.

A change of tenderer for goods, work or services to replace, supplement or extend supplies already provided is not possible for economic or technical reasons, would cause considerable difficulties or would entail substantial additional costs.

f.

The contracting authority is procuring original products (prototypes) or new types of supplies which are produced or developed at its request as part of a research, trial, study or new development contract.

g.

The contracting authority is procuring supplies on commodity exchanges.

h.

The contracting authority can procure supplies at a price significantly lower than the customary prices due to a favourable, temporary offer (particularly in the case of liquidation sales).

i.

The contracting authority is awarding the follow-up contract to the winner of a planning or turnkey contract competition or of a selection procedure for planning or turnkey contract studies; the following conditions must be met:

1.

the preceding procedure was conducted in compliance with the principles of the law;

2.

the proposed solutions were assessed by an independent panel of experts;

3.

the contracting authority reserved the right in the invitation to tender to award the subsequent contract in a direct award procedure.

³ The contracting authority may use the direct award procedure to award a contract as described in Article 20 paragraph 3 if the direct award procedure is of major significance:

a.

for maintaining domestic companies which are important for national defence; or

b.

for safeguarding Switzerland's public interests.

⁴ The contracting authority shall prepare documentation with the following content on each contract awarded in accordance with paragraphs 2 or 3:

a.

the name of the contracting authority and the tenderer selected;

b.

the type and value of the supplies procured;

c.

an explanation of the circumstances and conditions justifying the use of the direct award procedure.

⁵ Public contracts may not be defined with the intention that only one specific tenderer is considered for the award from the outset, particularly due to the technical or artistic features of the contract (paragraph 2 letter c) or in the case of replacing, supplementing or extending supplies already provided (paragraph 2 letter e).

¹ The contracting authority that organises a design contest or a competition to conduct studies including execution or awards study contracts shall regulate the procedure on a case-by-case basis in compliance with the principles of this Act. It may refer to the relevant provisions of trade associations.

² The Federal Council shall determine:

a.

the types of design contest and the terms of study contracts;

b.

the types of procedure to be applied;

c.

the requirements in terms of preparatory work;

d.

the arrangements for the preliminary technical examination of the competition entries prior to their evaluation by the panel of experts;

e.

the specific terms for study contracts and design contest for the procurement of information and communication technology supplies;

f.

the make-up of the panel of experts and the requirements concerning the independence of its members;

g.

the tasks of the panel of experts;

h.

the conditions under which the panel of experts may decide on purchases;

i.

the conditions under which the panel of experts may rank competition entries that deviate from the provisions of the design contest programme;

j.

the manner in which prizes may be awarded and the claims that the winners may make depending on the type of design contest;

k.

the compensation for the creators of award-winning competition entries in cases where the contracting authority does not follow the recommendation of the panel of experts.

¹ The contracting authority may hold an electronic auction for the procurement of standardised goods, work or services within the framework of a procedure under this Act. In this case, the tenders are revised after an initial full evaluation and re-ranked using electronic aids and, if necessary, multiple rounds. Reference must be made to this in the invitation to tender.

² The electronic auction covers the following areas:

a.

prices where the contract is to be awarded to the tenderer with the lowest total price; or

b.

prices and values for quantifiable components such as weight, purity or quality where the contract is to be awarded to the most advantageous tender.

³ The contracting authority checks whether the tenderers meet the eligibility criteria and whether the tenders fulfil the technical specifications. It carries out an initial evaluation of the tenders based on the award criteria and the weighting established for this purpose. Before the auction begins, it provides each tenderer with the following:

a.

the automatic evaluation method, including the mathematical formula based on the award criteria specified;

b.

the result of the initial evaluation of its tender; and

c.

all other relevant information regarding the auction process.

⁴ All eligible tenderers are simultaneously invited electronically to submit new or amended tenders. The contracting authority may limit the number of eligible tenderers, provided it announced this in the invitation to tender or in the tender documentation.

⁵ The electronic auction may comprise several successive rounds. The contracting authority informs all tenderers of their rank in each round.

¹ In the case of complex contracts, intellectual services or the procurement of innovative goods, work or services, a contracting authority may, within the framework of an open or selective procedure, conduct a dialogue with the aim of specifying the subject of the supply and identifying and defining the solutions or procedures. Reference must be made to the dialogue in the invitation to tender.

² The dialogue may not be conducted for the purpose of negotiating prices or total prices.

³ The contracting authority formulates and explains its needs and requirements in the invitation to tender or in the tender documentation. It also discloses the following:

a.

the dialogue process;

b.

the possible content of the dialogue;

c.

whether and how tenderers will be compensated for their participation in the dialogue and the use of their intellectual property rights, knowledge and experience;

d.

the timeframes and arrangements for submitting the final tender.

⁴ It may reduce the number of participating tenderers by using objective and transparent criteria.

⁵ It documents the process and content of the dialogue in an appropriate and comprehensible manner.

⁶ The Federal Council may regulate the dialogue arrangements in more detail.

¹ The contracting authority may issue an invitation to tender towards agreements with one or more tenderers with the aim of determining the terms for the goods, work and services to be procured over a given period, in particular with regard to their price and, where appropriate, the quantities envisaged. The contracting authority may conclude individual contracts based on such a framework agreement during its term.

² Framework agreements may not be used with the intention or effect of impeding or eliminating competition.

³ The term of a framework agreement may not exceed 5 years. An automatic extension is not possible. A longer term may be envisaged in justified cases.

⁴ If a framework agreement is concluded with only one tenderer, the individual contracts based on this framework agreement are concluded in accordance with the terms of the framework agreement. For the conclusion of the individual contracts, the contracting authority may ask the respective contracting party in writing to complete its tender.

⁵ If framework agreements are concluded with several tenderers for sufficient reasons, the contracting authority may choose to conclude individual contracts either in accordance with the terms of the respective framework agreement without a new call for tenders or in accordance with the following procedure:

a.

Before concluding each individual contract, the contracting authority consults the contracting parties in writing and informs them of the specific needs.

b.

The contracting authority sets the contracting parties a reasonable deadline for submitting tenders for each individual contract.

c.

The tenders must be submitted in writing and are binding for the period specified in the request.

d.

The contracting authority concludes the individual contract with the contracting party that submits the best tender based on the criteria defined in the tender documentation or framework agreement.

¹ During the award procedure and the execution of the contract to supply the goods, work or services, the contracting authority shall ensure that the tenderer and its subcontractors fulfil the participation conditions, particularly the requirements set out in Article 12, have paid the taxes and social security contributions due and refrain from entering into any unlawful agreements affecting competition.

² It may require the tenderer to provide evidence of compliance with the participation conditions, specifically by means of a self-declaration or inclusion on a list.

³ It states what evidence must be submitted and when in the invitation to tender or in the tender documentation.

¹ The contracting authority shall set out the tenderer eligibility criteria in full in the invitation to tender or in the tender documentation. The criteria must be objectively necessary and verifiable for the procurement project.

² The eligibility criteria may relate in particular to the tenderer's professional, financial, economic, technical and organisational capacity, as well as to its experience.

³ The contracting authority shall specify what evidence must be submitted and when in the invitation to tender or in the tender documentation.

⁴ It may not impose the condition that the tenderer has already received one or more public contracts from a contracting authority subject to this Act.

¹ The contracting authority may keep a list of tenderers that meet the requirements for receiving public contracts by virtue of their eligibility.

² The following information must be published on the internet platform of the Confederation and the cantons:

a.

the source of the list;

b.

information on the criteria to be met;

c.

verification methods and conditions for inclusion on the list;

d.

period of validity and procedure for renewing inclusion on the list.

³ A transparent procedure must ensure that it is possible at any time to request inclusion, to examine or verify eligibility, and to place a tenderer on the list or delete it from it.

⁴ Tenderers that are not included on a list are also permitted to participate in a specific procurement project if they provide proof of their eligibility.

⁵ If the list is deleted, the tenderers listed shall be informed.

¹ The contracting authority evaluates the tenders using performance-related award criteria. In compliance with Switzerland's international obligations, it shall in particular take into account, besides the price and quality, criteria such as appropriateness, timeframes, technical value, economic efficiency, life cycle costs, aesthetics, sustainable development, plausibility of the tender, the different price levels in the countries where the supply is provided, reliability of the price, creativity, customer service, delivery conditions, infrastructure, innovation content, functionality, service readiness, expertise or efficiency of the methodology.

² Outside the scope of international treaties, the contracting authority may additionally take into account the extent to which the tenderer provides apprenticeships places, jobs for older employees or jobs to reintegrate long-term unemployed people.

³ The contracting authority shall indicate the award criteria and their weighting in the invitation to tender or in the tender documentation. The weighting may be omitted if the procurement concerns solutions, possible solutions or procedures.

⁴ For standardised services, the award may be made exclusively based on the lowest total price criterion, provided that the technical specifications for the goods, work or services guarantee high sustainability standards in social, environmental and economic terms.

¹ The contracting authority shall set out the required technical specifications in the invitation to tender or in the tender documentation. These describe the characteristics of what is to be procured, such as function, performance, quality, safety, security, dimensions and production processes, and regulate the labelling and packaging requirements.

² When setting out the technical specifications, the contracting authority shall rely as far as possible and appropriate on international standards, or failing that on technical regulations used in Switzerland, recognised national standards or industry recommendations.

³ Certain companies or trademarks, patents, copyrights, designs or types, and references to a specific origin or to specific producers are not permitted as technical specifications, unless there is no other sufficiently precise or comprehensible way of describing the goods, work or services and the contracting authority includes the words "or equivalent" in the tender documentation. Equivalence has to be proven by the tenderer.

⁴ The contracting authority may stipulate technical specifications for the conservation of natural resources or the protection of the environment.

¹ Bidding consortia and subcontractors are permitted, provided the contracting authority does not exclude or restrict this possibility in the invitation to tender or in the tender documentation.

² Multiple tenders by subcontractors or multiple tenderers in the context of consortia are possible only if they are expressly permitted in the invitation to tender or in the tender documentation.

³ The characteristic supply generally has to be provided by the tenderer.

¹ The tenderer has to submit a complete tender for what is to be procured.

² The contracting authority may divide the procurement item into lots and award them to one or more tenderers.

³ If the contracting authority has formed lots, tenderers may submit a tender for several lots, unless the contracting authority has provided otherwise in the invitation to tender. It may stipulate that a single tenderer may receive only a limited number of lots.

⁴ If the contracting authority reserves the right to require tenderers to cooperate with third parties, it announces this in the invitation to tender.

⁵ The contracting authority may reserve the right to award contracts for partial supplies in the invitation to tender.

¹ Tenderers are free to propose variants in addition to the goods, work or services described in the invitation to tender. The contracting authority may limit or exclude this possibility in the invitation to tender.

² A variant is any tender that allows the aim of the procurement to be achieved in a way that is different from that envisaged by the contracting authority.

¹ Tenders and requests to participate must be submitted in writing, in full and by the deadline as specified in the invitation to tender or in the tender documentation.

² They may be submitted electronically if this is provided for in the invitation to tender or tender documentation and the requirements defined by the contracting authority are complied with.

The publication of an invitation to tender contains at least the following information:

a.

name and address of the contracting authority;

b.

type of contract and procedure and the relevant CPV¹² classification, as well as the relevant CPC¹³ classification in the case of services;

c.

description of the goods, work or services, including the type and quantity, or, if the quantity is unknown, an estimate thereof, and any options;

d.

place and time of performance;

e.

if applicable, a division into lots, restriction on the number of lots and admission of partial tenders;

f.

if applicable, a restriction on or exclusion of bidding consortia and subcontractors;

g.

if applicable, a restriction on or exclusion of variants;

h.

in the case of contracts for goods, work or services required on a recurring basis, an indication of the date of the subsequent invitation to tender if possible and, if appropriate, an indication that the timeframe for submitting tenders will be shortened;

i.

where appropriate, an indication that an electronic auction will be held;

j.

where appropriate, an indication of the intention to conduct a dialogue;

k.

the deadline for submitting tenders or requests to participate;

l.

formal requirements for the submission of tenders or requests to participate, in particular, an indication that the supply and price tenders may need to be in two separate envelopes;

m.

language(s) of the procedure and tender;

n.

the eligibility criteria and the evidence required;

o.

in the case of a selective procedure, the maximum number of tenderers invited to submit tenders, if applicable;

p.

the award criteria and their weighting, if this information is not provided in the tender documentation;

q.

where appropriate, the reservation of the right to award contracts for partial supplies;

r.

the period of validity of tenders;

s.

an indication of where the tender documentation can be obtained and, if applicable, a fee to cover costs;

t.

an indication as to whether the procurement falls within the scope of international treaties;

u.

where appropriate, already involved tenderers permitted to take part in the procedure;

v.

where appropriate, instructions on legal remedies.

Where this information is not already contained in the invitation to tender, the tender documentation provides the following information:

a.

name and address of the contracting authority;

b.

the subject of the procurement, including technical specifications and certificates of conformity, plans, drawings and necessary instructions, as well as information on the quantity needed;

c.

formal requirements and participation conditions for the tenderers, including a list of data and documents that the tenderers must submit in connection with the participation conditions, as well as any weighting of the eligibility criteria;

d.

the award criteria and their weighting;

e.

if the contracting authority processes the procurement electronically: any authentication and encryption requirements for the electronic submission of information;

f.

if the contracting authority envisages an electronic auction: the rules for conducting the auction, including the indication of those tender components which may be adapted and which will be evaluated based on the award criteria;

g.

the date, time and place for tender opening if the tenders are opened publicly;

h.

all other terms and conditions necessary for the preparation of tenders, particularly the specification of the currency in which the tender is to be submitted (usually Swiss francs);

i.

timeframes for the provision of the goods, work or services.

¹ In the open and selective procedure, all tenders submitted on time are opened by at least two representatives of the contracting authority.

² Minutes of the tender opening are prepared. These must contain at least the names of the people present, the names of the tenderers, the date of their tender submission, any tender variants and the total price of each tender.

³ If the supply and price tenders must be submitted in two separate envelopes, the envelopes must be opened in accordance with paragraphs 1 and 2, but only the total prices must be recorded in the minutes regarding the opening of the second envelope.

⁴ At the latest after the contract has been awarded, all tenderers are granted access to the minutes upon request.

¹ The contracting authority verifies the tenders received for compliance with the formal requirements. It corrects any obvious calculation errors.

² The contracting authority may require tenderers to explain their tenders. It keeps a written record of the request and the answers.

³ If a tender is received with a total price that appears unusually low in comparison with the other tenders, the contracting authority must obtain appropriate information from the tenderer as to whether the participation conditions have been complied with and whether the other requirements of the invitation to tender have been understood.

⁴ If supply and price tenders must be submitted in two separate envelopes, the awarding office first prepares a ranking according to the quality of the tenders. In a second step, it evaluates the total prices.

¹ The contracting authority may work with the tenderers to adjust the tenders with regard to the goods, work or services and the arrangements for their provision in order to determine the most advantageous tender.

² An adjustment takes place only if:

a.

this is the only way to clarify the contract or the tenders or to make the tenders objectively comparable in accordance with the award criteria; or

b.

supply changes are objectively and materially necessary, whereby what is to be supplied, the criteria and the specifications may not be adapted in such a way that the characteristic supply or the potential group of tenderers changes as a result.

³ A call for price adjustments is permitted only in connection with the circumstances described in paragraph 2.

⁴ The contracting authority logs the results of the adjustment.

¹ Provided that the eligibility criteria and technical specifications are met, the tenders are examined and evaluated objectively, uniformly and comprehensibly in accordance with the award criteria. The contracting authority documents the evaluation.

² If the comprehensive examination and evaluation of tenders requires considerable time and effort, and provided that the contracting authority announced this in the invitation to tender, it may subject all tenders to an initial examination and rank them based on the documents submitted. Where possible, it selects the three best-ranked tenders on that basis and subjects them to a comprehensive examination and evaluation.

The contract is awarded to the most advantageous tender.

¹ In the case of contracts outside the scope of international treaties, a contract may be concluded with the selected tenderer after the award has been made.

² In the case of contracts within the scope of international treaties, a contract may be concluded with the selected tenderer after expiry of the deadline for appealing against the award, unless the Federal Administrative Court has granted suspensive effect to an appeal against the award.

³ If, in the case of contracts within the scope of international treaties, an appeal procedure against the award is pending without suspensive effect having been requested or granted, the contracting authority shall notify the court immediately of the conclusion of the contract.

¹ The contracting authority may abandon the award procedure, particularly if:

a.

it decides not to award the public contract for valid reasons;

b.

no tender meets the technical specifications or the other requirements;

c.

more advantageous tenders are to be expected due to changes in the framework conditions;

d.

the tenders submitted do not allow for economical procurement, or significantly exceed the cost framework;

e.

there are sufficient indications of an unlawful agreement affecting competition between the tenderers;

f.

a significant change in the goods, work or services requested becomes necessary.

² Tenderers are not entitled to compensation in the event of a justified abandonment of the procedure.

¹ The contracting authority may exclude a tenderer from an award procedure, delete it from a list or revoke a contract it has already been awarded if it is found that the tenderer concerned, one of its governing bodies, a third party called upon or one of such a party's governing bodies:

a.

does not fulfil or no longer fulfils the conditions for participation in the procedure, or its behaviour jeopardises the legally compliant conduct of the award procedure;

b.

submitted a tender or request to participate that contains substantial formal errors or deviates substantially from the binding requirements of an invitation to tender;

c.

has been found guilty by a legally enforceable judgment of a misdemeanour to the detriment of the contracting authority or of a felony.

d.

is subject to attachment or bankruptcy proceedings;

e.

has violated anti-corruption provisions;

f.

refuses to allow inspections that have been ordered;

g.

has failed to pay taxes or social security contributions that are due;

h.

has failed to execute previous public contracts correctly or otherwise demonstrated that it is not a reliable and trustworthy partner;

i.

was involved in the preparation of the procurement and the resulting competitive disadvantage for the other tenderers cannot be offset by appropriate means;

j.

has been legally excluded from future public contracts under Article 45 paragraph 1.

² The contracting authority may also take measures in accordance with paragraph 1 if there are sufficient indications that the tenderer, one of its governing bodies, a third party called upon or one of such a party's governing bodies:

a.

gave the contracting authority untrue or misleading statements and information;

b.

entered into unlawful agreements affecting competition;

c.

submitted an abnormally low tender without proving compliance with the participation conditions upon request and offers no guarantee that the goods, work or services put out to tender will be provided in accordance with the contract;

d.

infringed recognised professional rules or compromised their professional honour or integrity through its acts or omissions;

e.

is insolvent;

f.

disregard workplace health and safety regulations, terms and conditions of employment, the provisions on the equal treatment of men and women in terms of equal pay, the provisions on confidentiality and the provisions of Swiss environmental law or the international conventions for the protection of the environment designated by the Federal Council;

g.

violated reporting or authorisation obligations under the IEA¹⁴;

h.

violated the Federal Act of 19 December 1986¹⁵ on Unfair Competition.

¹ If a tenderer or subcontractor which, either itself or through its governing bodies, fulfils to a serious extent one or more of the criteria referred to in Article 44 paragraph 1 letters c and e and paragraph 2 letters b, f and g, the contracting authority or the competent authority by virtue of the law order may exclude it from future public contracts for a period of up to 5 years. A warning may be issued in minor cases. In the case of corruption (Art. 44 para. 1 lit. e), the tenderer is excluded from contracts awarded by all federal contracting authorities; in the other cases, the tenderer is excluded from contracts awarded by the contracting authority concerned only.

² The possible sanctions apply irrespective of whether any further legal action is taken against the tenderer or subcontractor concerned or its governing bodies. The contracting authority shall notify the Competition Commission of any suspicion of unlawful agreements affecting competition (Art. 44 para. 2 lit. b).

³ The contracting authority or the competent authority by virtue of the law shall notify an office designated by the Federal Council of a legally binding exclusion in accordance with paragraph 1. This office shall keep a non-public list of sanctioned tenderers and subcontractors, which records the reasons for the exclusion and the duration of the exclusion from public contracts. The office shall ensure that each contracting authority can obtain the relevant information in relation to a particular tenderer or subcontractor. It may establish a retrieval procedure for this purpose. The Confederation and the cantons shall allow mutual access to all information collected in accordance with this article. The entry is deleted from the list once the sanction has expired.

¹ When setting the deadlines for submitting tenders or requests to participate, the contracting authority shall take account of the complexity of the contract, the probable number of subcontracts and the mode of transmission.

² The following minimum deadlines apply within the scope of international treaties:

a.

in an open procedure: 40 days from publication of the invitation to tender for the submission of tenders;

b.

in a selective procedure: 25 days from publication of the invitation to tender for the submission of requests to participate and 40 days from the invitation to prepare tenders for the submission of tenders.

³ Any extension of these deadlines must be published or notified to all tenderers in good time.

⁴ Outside the scope of international treaties, the deadline for submitting tenders is generally at least 20 days. In the case of largely standardised goods, work and services, the deadline may be reduced to no shorter than 5 days.

¹ The contracting authority may reduce the minimum deadlines set out in Article 46 paragraph 2 to no shorter than 10 days in cases of proven urgency.

² It may reduce the minimum 40-day deadline for submitting tenders under Article 46 paragraph 2 by 5 days if:

a.

the invitation to tender is published electronically;

b.

the tender documentation is simultaneously published electronically;

c.

tenders are received electronically.

³ It may reduce the minimum 40-day period for submitting tenders under Article 46 paragraph 2 to no shorter than 10 days, provided it has published a prior notice with the following content at least 40 days and no more than 12 months before publication of the invitation to tender:

a.

subject of the intended procurement;

b.

approximate timeframe for submitting tenders or requests to participate;

c.

the fact that interested tenderers should inform the contracting authority of their interest in the procurement;

d.

where the tender documentation can be obtained;

e.

all other information under Article 35 that is already available at that time.

⁴ It may reduce the minimum 40-day period for submitting tenders under Article 46 paragraph 2 to no shorter than 10 days if it is procuring goods, work or services required on a recurring basis and given notice of the shortening of the period in an earlier invitation to tender.

⁵ Furthermore, the contracting authority may in any event reduce the deadline for submitting tenders to no shorter than 13 days when purchasing commercial goods, work or services or a combination of the two, provided it electronically publishes the tender documentation together with the invitation to tender. If the contracting authority accepts tenders for commercial goods, work or services electronically, it may also reduce the deadline to no shorter than 10 days.

¹ In the open and selective procedure, the contracting authority publishes the prior notice, the invitation to tender, the award and the abandonment of the procedure on an internet platform for public procurement operated jointly by the Confederation and the cantons. It also publishes awards that were made using the direct award procedure for contracts above the applicable threshold for the open or selective procedure. This does not apply to contracts awarded using the direct award procedure in accordance with Annex 5 section 1 letters c and d.

² The tender documentation is generally made available at the same time and electronically. Access to these publications is free of charge.

³ The organisation commissioned by the Confederation and the cantons to develop and operate the internet platform may impose fees or charges for the contracting authorities, tenderers and other parties that use the platform or associated services. These are based on the number of publications or the scope of the services used.

⁴ In the case of contracts within the scope of international treaties that are not published in an official language of the World Trade Organization (WTO), the contracting authority shall publish a summary of the notice in an official language of the WTO at the same time as the invitation to tender. The summary must contain at least the following:

a.

subject of the procurement;

b.

timeframe for submitting tenders or requests to participate;

c.

where the tender documentation can be obtained.

⁵ The Federal Council shall regulate any additional requirements concerning the languages of publications, the tender documentation, submissions by tenderers and the procedure. It may take appropriate account of Switzerland's plurilingualism. It may modify the requirements according to supply types. The following principles apply, subject to exceptions expressly specified by the Federal Council:

a.

In the case of construction contracts and associated supplies of goods and services, invitations to tender and awards must be published in at least two official languages, particularly in the official language at the construction location.

b.

In the case of supply and service contracts, invitations to tender and awards must be published in at least two official languages.

c.

Any official language may be used for submissions by tenderers.

⁶ Contracts awarded within the scope of international treaties generally have to be published within 30 days. The notification must contain the following information:

a.

type of procedure used;

b.

subject and scope of the contract;

c.

name and address of the contracting authority;

d.

date of the award;

e.

name and address of the tenderer selected;

f.

total price of the tender selected or, in exceptional cases, the lowest and highest total prices of the tenders included in the award procedure, including VAT.

¹ The contracting authorities shall retain the relevant documents concerning an award procedure for at least 3 years from the date of the legally binding award.

² The documents to be retained include:

a.

the invitation to tender;

b.

the tender documentation;

c.

the minutes of the tender opening;

d.

the correspondence concerning the award procedure;

e.

the adjustment logs;

f.

decisions within the framework of the award procedure;

g.

the tender selected;

h.

data to allow the traceability of the electronic processing of a procurement;

i.

documentation on public contracts within the scope of international treaties awarded using the direct award procedure.

¹ Within twelve months of the end of each calendar year, the contracting authorities shall compile electronic statistics on the previous year's procurement within the scope of international treaties for the State Secretariat for Economic Affairs (SECO).

² The statistics shall contain at least the following information:

a.

the number and total value of the public contracts awarded by each contracting authority, broken down into construction work, supply and service contracts, indicating the relevant CPC or CPV classification;

b.

the number and total value of the public contracts awarded using the direct award procedure;

c.

where no data can be provided: estimates of the data referred to under a and b, together with an explanation of the estimation method used.

³ The total value indicated shall include value added tax.

⁴ SECO's overall statistics are publicly accessible, subject to data protection and the protection of commercial secrecy.

¹ The contracting authority shall notify the tenderers of its decisions by publication or individual notification. The tenderers have no right to be heard before the decision is notified.

² Appealable decisions must be summarily substantiated and include instructions on rights of appeal.

³ The summary substantiation for an award shall include:

a.

the type of procedure and the name of the successful tenderer;

b.

the total price of the successful tender or, by way of exception, the lowest and highest total prices of the tenders submitted in the award procedure;

c.

the decisive features and advantages of the successful tender;

d.

where applicable, the rationale for using the direct award procedure.

⁴ The contracting authority may not disclose any information if disclosure would:

a.

violate applicable law or harm public interests;

b.

prejudice legitimate economic interests of the tenderers; or

c.

jeopardise fair competition between the tenderers.

¹ The contracting authorities' decisions may be appealed to the Federal Administrative Court:

a.

in the case of supplies of goods or services: when the contract value exceeds the applicable threshold for the invitation procedure;

b.

in the case of construction work: when the contract value exceeds the applicable threshold for the open or selective procedure.

² In the case of contracts outside the scope of international treaties, the appeal may only seek a declaration that a decision violates federal law; this does not apply to appeals against decisions in accordance with Article 53 paragraph 1 letter i. Foreign tenderers may appeal if the state in which they are domiciled grants reciprocal rights.

³ The Federal Supreme Court has direct jurisdiction for appeals against procurements of the Federal Administrative Court.

⁴ The Federal Supreme Court shall appoint an internal appeals committee to assess appeals against Federal Supreme Court procurements.

⁵ There is no right of appeal against the award of the public contracts referred to in Annex 5 section 1 letters c and d.

¹ Solely the following may be contested by appeal:

a.

the invitation to tender for the contract;

b.

the decision on the choice of tenderers in the selective procedure;

c.

the decision to include a tenderer on a list or to remove a tenderer from a list;

d.

the decision on recusal requests;

e.

the award;

f.

the revocation of the award;

g.

the abandonment of the procedure;

h.

exclusion from the procedure;

i.

the imposition of a sanction.

² Orders in the tender documentation whose significance is apparent may be challenged only within the framework of an appeal against the invitation to tender.

³ The provisions of this Act on the right to be heard in the decision-making procedure, on suspensive effect and on limiting the grounds for appeal do not apply to appeals against the imposition of a sanction.

⁴ Decisions under paragraph 1 letters c and i may be appealed irrespective of the value of the contract.

⁵ There are no further rights of appeal against decisions under this Act.

⁶ There is no right of appeal against the conclusion of individual contracts in accordance with Article 25 paragraphs 4 and 5.

¹ The appeal does not have suspensive effect.

² The Federal Administrative Court may, upon request, grant suspensive effect to an appeal against a contract within the scope of international treaties if the appeal appears to be sufficiently justified and there are no overriding public interests to the contrary. As a rule, only an exchange of correspondence takes place on the issue of suspensive effect.

³ A suspensive effect request that is an abuse of law or not made in good faith is not protected. Claims for damages by the contracting authority and the tenderer selected must be assessed by the civil courts.

Unless otherwise provided for in this Act, the decision-making and appeals procedure is governed by the provisions of the Federal Act of 20 December 1968¹⁶ on Administrative Procedure (APA).

¹ Appeals must be submitted in writing with a statement of the grounds within 20 days of the decision being notified.

² The provisions of the APA¹⁷ and the Federal Act of 17 June 2005¹⁸ on the Federal Supreme Court on legal holidays do not apply to the award procedures under this Act.

³ The appropriateness of a decision cannot be reviewed in appeal proceedings.

⁴ Only those that can prove that they can and wish to provide the goods, work or services requested or equivalent goods, work or services may appeal against awards in the direct award procedure. An appeal may be filed only on the grounds that the direct award procedure was wrongly applied or that the contract was awarded based on corruption.

¹ There is no right to inspect files in the decision-making procedure.

² In the appeal procedure, the complainant must be granted access, upon request, to the evaluation of its tender and other procedural files relevant to the decision, unless there are overriding public or private interests to the contrary.

¹ The appeal body may decide on the case itself or refer it back to the previous instance or to the contracting authority. In the event of referral, it must issue binding instructions.

² If the appeal proves to be justified and the contract has already been concluded with the tenderer selected, the appeal body shall determine the extent to which the contested decision violates the applicable law.

³ At the same time as establishing the violation, the appeal body shall decide on any claim for damages.

⁴ Damages are limited to the necessary expenses incurred by the tenderer in connection with preparing and submitting its tender.

¹ The Public Procurement Commission for the Confederation and the Cantons (KBBK) is responsible for monitoring Switzerland's international obligations in the area of public procurement. It comprises equal numbers of representatives of the Confederation and the cantons. SECO is responsible for providing the secretariat.

² The Public Procurement Commission performs the following tasks in particular:

a.

preparing Switzerland's position in international bodies for the attention of the Federal Council and advising the Swiss negotiation delegations;

b.

promoting the exchange of information and experience between the Confederation and the cantons, and drawing up recommendations concerning the implementation of international obligations in Swiss law;

c.

fostering contacts with foreign supervisory authorities;

d.

providing advice and mediating in individual cases in the event of disputes relating to matters referred to under letters a to c.

³ If there are indications that Switzerland's international obligations concerning public procurement are being violated, the KBBK may intervene with the federal or cantonal authorities and cause them to clarify the circumstances and take the necessary measures if irregularities are found.

⁴ The KBBK may prepare expert reports or mandate experts to do so.

⁵ The KBBK drafts its own regulations, which require the approval of the Federal Council and the Intercantonal Public Procurement Body.

¹ The Federal Council issues the implementing provisions. It may delegate the task of issuing implementing provisions on the statistics described in Article 50 to the federal office responsible for procurement.

² When issuing the implementing provisions, it shall comply with the requirements of the relevant international treaties.

³ The Confederation may participate in the organisation that operates the internet platform of the Confederation and the cantons for public procurement in Switzerland.

The repeal and amendment of other legislative instruments are covered in Annex 7.

Award procedures initiated before the entry into force of this Act will be completed under existing law.

¹ This Act is subject to an optional referendum.

² The Federal Council will determine the commencement date.

Commencement date: 1 January 2021¹⁹